Contract performance conditions in EU tenders

After the award · This guide was generated with the help of an AI system. Its legal references were checked against the official EU texts listed under Sources on 11 October 2026. Next review due by 11 October 2027, or sooner if the law changes. EU rules only. Not legal advice.

Short answer. A buyer may set special conditions for how the contract is to be performed, for example on emissions, training, apprenticeships or the working conditions of the staff. These conditions must be linked to the subject-matter of the contract and published in the call for competition or the documents (Article 70). They aren’t scored. They are fixed requirements that every winner must meet, so they don’t change how tenders are compared, but they change what each tender costs. As a rule, you prove them when you perform the contract, not when you bid. The Court has held that a tender can’t be rejected only because it didn’t prove, at submission, that it already met a performance condition (Sanresa, C‑295/20). What you do need at submission is a price that covers them. A condition can’t reach your general corporate policy, and wage conditions are limited by EU rules on posted workers and the free movement of services.

EU law · What Article 70 allows

“Contracting authorities may lay down special conditions relating to the performance of a contract, provided that they are linked to the subject-matter of the contract within the meaning of Article 67(3) and indicated in the call for competition or in the procurement documents. Those conditions may include economic, innovation-related, environmental, social or employment-related considerations” (Article 70).

Two conditions follow from that text:

• A link to the subject-matter. Article 67(3) gives the link a wide meaning. It covers the works, supplies or services “in any respect and at any stage of their life cycle”, including the specific process of production, provision or trading, even where that isn’t part of their material substance.
• Published in advance. The condition must be in the call for competition or the procurement documents. One added after the award is not an Article 70 condition.

What the recitals give as examples. Products made without toxic chemicals, services provided with energy-efficient machines, the use of fair-trade products, measures for equality between women and men, the employment of long-term job-seekers, and training for unemployed or young people during the contract (recitals 97 to 99).

What a condition can’t do. Recital 104 sums up the difference from award criteria. Performance conditions “constitute fixed objective requirements that have no impact on the assessment of tenders”. They must not be directly or indirectly discriminatory, and the link to the subject-matter “excludes requirements referring to a general corporate policy”.

Conditions, legal obligations and labels

• Legal obligations aren’t the same thing. Member States must make sure that contractors comply with applicable environmental, social and labour law, collective agreements and the conventions listed in Annex X (Article 18(2)). That applies whether or not the documents add a condition. For subcontractors, compliance is ensured by the competent national authorities (Article 71(1)).
• Labels can be required as proof. A buyer may require a specific label as evidence that the works, supplies or services meet characteristics set in the contract performance conditions, under the conditions of Article 43, and must accept equivalent labels. Test reports and certificates can also serve as proof for performance conditions (Article 44(1); see technical specifications, labels and variants).

EU law · When you have to prove it

The same requirement can sit in more than one place. In a refuse-collection tender, vehicles had to meet the Euro 5 emissions standard, carry a GPS transmitter and have adequate capacity. The Court held that Directive 2014/24 doesn’t preclude a technical requirement from being treated at the same time as a selection criterion, a technical specification and a performance condition (C‑927/19, ruling point 3). It later added that a buyer may also choose only one of those classifications (SC NV Construct, C‑403/21, paragraph 63).

Proof at submission isn’t required. In Sanresa (C‑295/20), the winner of a waste-management contract had to hold the consents needed to ship waste to another country. The Court held that this was a condition of performance (ruling point 1). A tender “may not be rejected solely on the ground that, at the time of submitting the tender, the tenderer has not produced proof that it meets a condition of performance of the contract” (ruling point 2). The Court later explained why: obliging tenderers to satisfy all performance conditions when they submit would be “an excessive requirement”, which might dissuade operators from taking part, and would infringe proportionality and transparency (C‑403/21, paragraph 65).

So read where the documents place a requirement. If it’s a performance condition, what you owe at submission is a tender that commits to it and a price that pays for it, not evidence that you already meet it.

EU law · Wages and the limits on social conditions

Social conditions on pay must respect the rules on posted workers. Recital 98 says that requirements on basic working conditions covered by Directive 96/71/EC, “such as minimum rates of pay”, should remain at the level set by national legislation or by collective agreements applied in accordance with Union law.

Two older judgments, given under the previous Directive (whose Article 26 is the predecessor of Article 70), show both sides:

• Allowed. A regional law could require tenderers and their subcontractors to undertake in writing, with the tender, to pay a minimum wage set by that law to the staff performing the contract. It could also exclude tenderers who refused to give that undertaking (RegioPost, C‑115/14, ruling points 1 and 2).
• Not allowed. Where a tenderer intended to perform the contract exclusively with workers of a subcontractor established in another Member State, the Treaty’s freedom to provide services (Article 56 TFEU) precluded requiring that subcontractor to pay the minimum wage of the buyer’s Member State (Bundesdruckerei, C‑549/13, ruling).

A buyer that wants to reward higher pay, rather than require it, can use an award criterion. That is a different tool with different limits (see scoring higher wages: what C‑210/24 allows).

What the case law adds

On 11 October 2026 we searched the 198 judgments and orders that the EU Publications Office links to Directive 2014/24, or to Directive 2004/18 from 14 July 2016 (154 with an English text). Three refer to Article 70: C‑927/19, C‑295/20 and C‑403/21, all cited above. The method is described in our analysis of the scoring formula. RegioPost and Bundesdruckerei predate that set and were read separately.

National law · What stays national

What happens if a condition isn’t met during performance (penalties, termination, damages) is a matter for the contract and national law. National law can also make some conditions mandatory, for example on minimum wages or the employment of disadvantaged people. Check both.

Our analysis · Pricing a performance condition

Performance conditions don’t earn points, but they cost money, and every bidder must bear the same cost. That makes them easy to underprice.

A made-up example. A four-year cleaning contract requires the winner to:

• take on 2 apprentices for the whole term;
• use electric vehicles for travel between sites;
• send a quarterly environmental report.

Suppose a bidder estimates the extra cost as €18,000 per apprentice per year, €6,000 a year for the vehicles, and €1,500 per report.

If the contract is worth €2,000,000, that is 9.6% of its value. A price that leaves it out may win on paper. If it’s questioned, it can’t be explained by reference to costs you didn’t include, and an abnormally low price that results from failing to meet environmental, social or labour obligations must be rejected (Article 69(3); see abnormally low tenders). After the award, the conditions still have to be met.

Practice · Before you bid

1. List every performance condition from the notice, the draft contract and any annexes. Note how and when compliance must be shown.
2. Cost each one over the full term, including options and renewals. Keep the build-up: you may need it to explain your price.
3. Check the classification. If a requirement is a performance condition but the documents ask for proof at submission, ask about it before the deadline (see clarification questions). Sanresa and C‑403/21 are the relevant authority.
4. Look for a condition that reaches your whole company rather than this contract, such as a group-wide policy. Recital 104 excludes “general corporate policy”. Raise it early.
5. Pass conditions on to subcontractors in your subcontracts, and check that they can meet them. Remember the limits on wage conditions for subcontractors working in another Member State (Bundesdruckerei).
6. If a label is the proof, check whether you hold it or an equivalent, and what other evidence the buyer will accept (Article 43(1)).

Practice · During the contract

1. Keep the evidence the documents ask for, and send reports on time.
2. If a condition becomes impossible to meet, tell the buyer in writing and ask how it will be handled. Changing the contract has its own rules (see changing a public contract after signature).
3. Remember the long tail. Significant or persistent deficiencies in performing a substantive requirement that lead to early termination, damages or similar sanctions can become an exclusion ground in later tenders (Article 57(4)(g); see exclusion grounds).

What this page doesn’t cover

National rules on penalties and termination. The Posted Workers Directive in detail. Utilities and concessions. Award criteria on social or environmental aspects (see how quality is scored). Contracts in the UK.