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Bid­ders, Appli­cants & Con­trac­tors

The enforce­ment of ten­der oblig­a­tions

Some clients award con­tracts per­ma­nent­ly with­out com­pe­ti­tion. This does not have to remain the case. Ten­der­ing oblig­a­tions are legal oblig­a­tions — and com­pli­ance with them can be enforced.

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Spe­cial case

Exhaust­ed frame­work agree­ment

If the max­i­mum quan­ti­ty is reached, a new invi­ta­tion to ten­der must be issued. The ECJ has con­firmed this twice.

Legal basis

Pub­lic pro­cure­ment, bud­get, state aid and antitrust law

Ten­der­ing oblig­a­tions can arise from var­i­ous legal sources.

What we do for you

Check oblig­a­tion to ten­der

We check whether there is a ten­der­ing oblig­a­tion in your case — under pro­cure­ment, bud­get, state aid or antitrust law.

Forc­ing a ten­der

We enforce the ten­der­ing oblig­a­tion before Ger­man author­i­ties and courts — and give you access to the mar­ket.

Check frame­work agree­ments

We check whether a frame­work agree­ment has been exhaust­ed and a new invi­ta­tion to ten­der can be request­ed.

It must be ten­dered

Pub­lic pro­cure­ment law is rid­dled with ten­der­ing oblig­a­tions. How­ev­er, this is not the only legal rea­son. Some­times ten­ders also have to be invit­ed due to bud­getary law or EU state aid law — for exam­ple in the case of land sales by the pub­lic sec­tor. In some cas­es, antitrust law also stip­u­lates that ten­ders must be invit­ed. If you are wait­ing for a ten­der that just does­n’t seem to be com­ing, con­sult us direct­ly.

Force ten­ders

Ten­der­ing oblig­a­tions are legal oblig­a­tions. With­out a call for ten­ders, bid­ders are not aware of any busi­ness oppor­tu­ni­ties — there is no pos­si­bil­i­ty of con­clud­ing and sell­ing con­tracts. The con­tract­ing author­i­ty con­tin­ues to rely on its exist­ing ser­vice provider. This sit­u­a­tion can be end­ed: Com­pli­ance with applic­a­ble law can be enforced before Ger­man author­i­ties and courts.

If you are affect­ed by a closed-shop men­tal­i­ty, con­ve­nient clients and car­tel-like struc­tures — con­tact us. We will check whether a ten­der­ing oblig­a­tion exists and enforce it for you.

Spe­cial case: the frame­work agree­ment

Frame­work agree­ments are wide­ly used in the pub­lic sec­tor. They set out the frame­work con­di­tions for indi­vid­ual con­tracts, but gen­er­al­ly do not con­tain any strict call-off oblig­a­tions or clear quan­ti­ty spec­i­fi­ca­tions. For bid­ders wish­ing to enter such a mar­ket, the ques­tion aris­es as to when a new invi­ta­tion to ten­der can be request­ed.
The Euro­pean Court of Jus­tice has dealt with this ques­tion twice and ruled both times: If the spec­i­fied max­i­mum quan­ti­ty is reached, the con­tract­ing author­i­ty must retender. Fur­ther­more, we are of the opin­ion that a new invi­ta­tion to ten­der can be demand­ed at any time if max­i­mum quan­ti­ties are not spec­i­fied. In Ger­many, the cor­rect con­clu­sions have not yet been drawn every­where from this case law. We would be hap­py to dis­cuss the impli­ca­tions with you in detail.

Typ­i­cal pro­ce­dure

  • Ana­lyz­ing the mar­ket — is there an oblig­a­tion to ten­der?
  • Iden­ti­fy the legal basis (pro­cure­ment, bud­get, state aid or antitrust law)
  • Invite clients to ten­der
  • If nec­es­sary, offi­cial or judi­cial enforce­ment
  • Prepar­ing an offer in the ten­der­ing pro­ce­dure

Fre­quent­ly asked ques­tions about pro­ce­dur­al sup­port

Gen­er­al ini­tial ori­en­ta­tion — no sub­sti­tute for legal advice in indi­vid­ual cas­es.

What can I do if a client always com­mis­sions the same provider?

First check whether a ten­der­ing oblig­a­tion actu­al­ly exists. If so, there are var­i­ous instru­ments avail­able — from a request to the client to offi­cial com­plaints and legal enforce­ment. Which one makes sense depends on whether a con­tract has already been con­clud­ed and how urgent the sit­u­a­tion is. → Have the sit­u­a­tion checked now

Con­tract­ing author­i­ties are oblig­ed to pub­lish con­tracts award­ed in the upper thresh­old range in the EU Offi­cial Jour­nal (TED). Some­times con­tract­ing author­i­ties even announce planned direct awards in advance. This mon­i­tor­ing is sys­tem­at­i­cal­ly worth­while.

Yes — because if the max­i­mum quan­ti­ty of a frame­work agree­ment has been exhaust­ed, the client must issue a new invi­ta­tion to ten­der. If this does not hap­pen, a new invi­ta­tion to ten­der can be enforced. This sit­u­a­tion is more com­mon in prac­tice than many assume.

Note: No legal advice. All answers do not replace an indi­vid­ual exam­i­na­tion by a lawyer.

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