Do you participate in public procurement procedures as a bidder or applicant? Do you have the impression that you don’t really get your chance? That somehow everything always goes against you? You are not the only one who knows this feeling. The legislator has long since provided redress. Namely, by means of the procurement review.
Procurement review — what is it?
Now, if you are wondering what a procurement review process is, there is an easy answer and a difficult answer. The simple answer: Above (and sometimes below) certain contract values, you can appeal to a so-called procurement chamber and request a review of the award. This is true in every state and, of course, in the federal administration as well. The difficult answer: this request for review depends on many preconditions which a layman (which, by the way, also includes a non-specialized lawyer) usually does not have an overview of.
No fear of the procurement review
As a rule, the same always applies to contracting authorities and bidders: do not be afraid of the review process. As a bidder or candidate, you should be aware of three reasons in particular why you should not feel any hesitation about the contract award review.
First reason: there are no blacklists
Even if the rumor persists, there are no blacklists. So here’s my first reason: there are no blacklists. Naturally, one or the other specialist administration forms an impression of your company and its performance, your adherence to deadlines and the quality of your work. However, as a rule, only for and in relation to order execution. Their behavior in the procurement process, on the other hand, is of less or no interest. Whether you are a “difficult” bidder or not does not matter. Again, it should not only not matter whether you exercise your rights in the procurement process or not. And it certainly doesn’t matter. ‘Exceptions prove the rule’, you will now retort. Well, we actually do not know of any such exceptions from our own viewpoint.
Second reason:You already have ’no contract’
Here is my second reason why you should not be afraid to initiate a contract procurement review procedure: since you already find yourself without a contract. The contract procurement review procedure will not win you the contract. Requesting an award of contract to your own company usually reveals the (legal) layman. However, it is often the case that — if you present yourself in a civil manner — you will enter into a discussion with the client. In the legally prescribed pathways, of course. If you are in a promising position in the evaluation sequence, this may indeed lead to the client awarding the contract to your company — as a result of the review procedure. As a side note: Experienced bidders with legal expertise who prefer to avoid the procurement review procedure and instead rely on damages are not infrequently mistaken. Even if your bid is not in a promising position, it is often the case that you simply get a second chance. The client invites tenders again — only better — and you can participate properly a second time. New game, new luck. Once again: No fear, because you already are without a contract.
Third reason: the client pays the piper, more often and for the most part
If you are successful, the contracting authority must pay your expenses. This means that the costs of the Procurement Chamber are paid by the state. And the lawyer’s fees? Here it is a bit more complicated, but far better for you than you probably think. At the very least, the contracting authority is required to reimburse the legal fees in accordance with the German Lawyers’ Fees Act (Rechtsanwaltsvergütungsgesetz). These are often not all the costs incurred. But usually the largest part. By the way, in case you didn’t know: If you file a substantiated complaint through a lawyer, the client has to pay the lawyer’s fees according to the Lawyers’ Fees Act. So why do you still file a complaint yourself?
Let me summarize: First, there are no blacklists. Second, no order you already have. Third, a reprimand and a procurement review process are generally not nearly as expensive as you might think. It pays to fight. Not always, but more often than you might think.
*This legal tip is not a substitute for legal advice in individual cases. By its very nature, it is incomplete, nor is it specific to your case, and it also represents a snapshot in time, as legal principles and case law change over time. It cannot and does not cover all conceivable constellations, serves entertainment and initial orientation purposes and is intended to motivate you to clarify legal issues at an early stage, but not to discourage you from doing so.