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Bid­ders, Appli­cants & Con­trac­tors

The Inva­lid­i­ty Deter­mi­na­tion Pro­ce­dure

Con­tract award­ed — but still not the last word. In the case of unlaw­ful de fac­to awards, the nul­li­ty of the con­tract can be estab­lished. The dead­lines for this are short.

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Most impor­tant note

Act on the same day

The dead­lines for nul­li­ty pro­ceed­ings are very short.

Legal basis

§160 Abs. 3 ARC

Notice peri­ods — absolute, no rein­state­ment

What we do for you

Quick check

We will check on the day we become aware of your sit­u­a­tion whether pro­ceed­ings are like­ly to be suc­cess­ful.

Process man­age­ment

We have suc­cess­ful­ly han­dled nul­li­ty pro­ceed­ings through­out Ger­many.

Accom­pa­ny­ing mea­sures

In addi­tion to pub­lic pro­cure­ment law, we exam­ine whether addi­tion­al steps under com­pe­ti­tion law make sense.

Con­tract award­ed — causa non fini­ta

Time and again, pub­lic con­tract­ing author­i­ties award con­tracts in clear vio­la­tion of pub­lic pro­cure­ment law. This is referred to as a de fac­to award. Such an act is unlaw­ful and may be declared null and void in the upper thresh­old range. We have already suc­cess­ful­ly han­dled numer­ous nul­li­ty deter­mi­na­tion pro­ceed­ings through­out Ger­many and can give you an idea of the dura­tion, costs and prospects of suc­cess.

How to find out about de fac­to awards

The con­tract­ing author­i­ty informs you about this in the upper thresh­old seg­ment. In the Ten­ders Elec­tron­ic Dai­ly (TED), which is freely avail­able on the Inter­net, the con­tract­ing author­i­ty pub­lish­es which con­tracts it has award­ed. Some­times it even pub­lish­es in advance which con­tracts it plans to award with­out invit­ing ten­ders.

Pay atten­tion to the dead­lines — they are very short. It is best to con­tact us on the day you become aware of the sit­u­a­tion. Oth­er­wise, you may lose the oppor­tu­ni­ty to have the nul­li­ty declared.

What makes a de fac­to award a de fac­to award?

The nul­li­ty of the con­tract can be estab­lished if the con­tract­ing author­i­ty has award­ed the con­tract in breach of Sec­tion 134 GWB — i.e. with­out inform­ing the unsuc­cess­ful com­peti­tor in advance and with­out observ­ing a wait­ing peri­od. The sec­ond case: The con­tract­ing author­i­ty awards the con­tract with­out pub­lish­ing a con­tract notice in the Offi­cial Jour­nal of the EU, with­out this being per­mit­ted by law. We will quick­ly clar­i­fy with you whether one of the two cas­es applies.

The result: rever­sal and retender­ing

A suc­cess­ful appli­ca­tion does not mean that you will be award­ed the con­tract. How­ev­er, it will result in the con­tract hav­ing to be rescind­ed. Your com­peti­tor must repay the mon­ey received — less com­pen­sa­tion for lost val­ue. If there is still a need for pro­cure­ment, the ser­vice must be put out to ten­der for the first time. You can then sub­mit a ten­der.

Typ­i­cal pro­ce­dure

  • Check award doc­u­ments, note all dead­lines
  • For­mu­late and sub­mit bid­der ques­tions
  • If nec­es­sary, sub­mit a com­plaint — in due time and form
  • Final offer check before the dead­line
  • Sup­port after the rejec­tion let­ter

Fre­quent­ly asked ques­tions about pro­ce­dur­al sup­port

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

Will I be award­ed the con­tract through the pro­ce­dure?

Not direct­ly. The pro­ce­dure leads to the rescis­sion of the unlaw­ful­ly con­clud­ed con­tract. If there is still a need for pro­cure­ment, the con­tract­ing author­i­ty must issue a new invi­ta­tion to ten­der — you can then sub­mit a ten­der.

Con­tract­ing author­i­ties are oblig­ed to pub­lish award­ed con­tracts in the TED. As a rule, the names of the con­tract­ed com­pa­nies are also list­ed there. This can be observed sys­tem­at­i­cal­ly.

The dead­lines are short and depend on the spe­cif­ic indi­vid­ual case. As a rule of thumb: con­tact a spe­cial­ist lawyer on the day you become aware of the sit­u­a­tion. Wait­ing is the biggest risk.

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

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  • Lessingstraße 2
    04109 Leipzig
    Germany
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