3 rea­sons why you as a bid­der or appli­cant should not be afraid of a con­tract pro­cure­ment review pro­ce­dure*.

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.

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