Nul­li­ty pro­ceed­ings

We rep­re­sent con­tract­ing author­i­ties as well as bid­ders and appli­cants in nul­li­ty pro­ceed­ings before all pub­lic pro­cure­ment tri­bunals and OLG sen­ates.

We exam­ine the admis­si­bil­i­ty of the de fac­to award for bid­ders who have been passed over. If we come to the con­clu­sion that the de fac­to award should not have been made, we approach the con­tract­ing author­i­ty before the court if this is still pos­si­ble in view of the tight dead­lines. The aim is to achieve a vol­un­tary ter­mi­na­tion of the de fac­to con­tract. This approach keeps costs low and also leads to suc­cess more quick­ly than a legal dis­pute.

Would you like to find out whether and why your com­peti­tor is being award­ed pub­lic con­tracts with­out a ten­der? We can do this for you. Talk to us!

If the con­tract­ing author­i­ty refus­es an out-of-court solu­tion, we ini­ti­ate nul­li­ty pro­ceed­ings. As part of the inspec­tion of files, we check whether the direct award was based on mis­lead­ing infor­ma­tion from the suc­cess­ful bid­der. If this is the case, we advise on the options for action under com­pe­ti­tion law.

For pub­lic con­tract­ing author­i­ties, we first check whether the direct award was per­mis­si­ble and can be brought down. Depend­ing on this, we rec­om­mend dif­fer­ent cours­es of action. Some­times it is appro­pri­ate to pre-empt the pro­cure­ment cham­ber and vol­un­tar­i­ly ter­mi­nate the con­tract with the win­ning bid­der. If this can­not be achieved with legal cer­tain­ty or if the appli­ca­tion for a dec­la­ra­tion of nul­li­ty does not have suf­fi­cient prospects of suc­cess, we will vig­or­ous­ly oppose it. We also assist the con­tract­ing author­i­ty in the event of a sub­se­quent new direct award of a con­tract so that it does not make any fur­ther mis­takes.

Unlaw­ful de fac­to award­ing of con­tracts is the most seri­ous pos­si­ble breach of pub­lic pro­cure­ment law. We help you to avoid this vio­la­tion under all cir­cum­stances. Please do not hes­i­tate to con­tact us.

Here are a few more exam­ples of suc­cess­ful pro­ceed­ings we have recent­ly con­duct­ed:

• Rep­re­sen­ta­tion of an IT ser­vice provider after direct award due to actu­al tech­ni­cal rea­sons, val­ue: approx. € 2 mil­lion
• Rep­re­sen­ta­tion of an IT ser­vice provider fol­low­ing direct award of con­tract due to tech­ni­cal rea­sons based on an arti­fi­cial restric­tion of the con­tract para­me­ters, val­ue: approx. €1 mil­lion
• Rep­re­sen­ta­tion of a secu­ri­ty com­pa­ny fol­low­ing direct award of con­tract due to lack of urgency, val­ue approx. € 1.5 mil­lion

Inter­im injunc­tion

If the rel­e­vant EU thresh­old is not reached, we also rep­re­sent bid­ders and appli­cants as well as pub­lic clients before the sub-thresh­old review bod­ies. This option is avail­able in Rhineland-Palati­nate, Sax­ony-Anhalt, Thuringia and Sax­ony.

Oth­er­wise, we lit­i­gate for clients and bid­ders before the admin­is­tra­tive and civ­il courts. The region­al court usu­al­ly has juris­dic­tion. Only in excep­tion­al cas­es is it a mat­ter of a stop order before the admin­is­tra­tive court.

The pre­lim­i­nary injunc­tion pro­ce­dure before the region­al courts is wrong­ly under­es­ti­mat­ed. It offers a quick, effec­tive rem­e­dy for small­er cas­es, which can be worth sev­er­al mil­lion euros in the con­struc­tion sec­tor. How­ev­er, clients and bid­ders must be care­ful: Lawyers are manda­to­ry in the region­al courts.

A com­plaint is always nec­es­sary, even below the EU thresh­olds, despite the lack of statu­to­ry reg­u­la­tion. We will file the nec­es­sary com­plaints for you and sub­mit the nec­es­sary appli­ca­tions to the com­pe­tent court with­out delay.

Cas­es:

• Rep­re­sen­ta­tion of a demo­li­tion com­pa­ny before the Berlin Region­al Court and the Court of Appeal due to vio­la­tions of the anal­o­gous­ly applic­a­ble VOB/A, pre­lim­i­nary injunc­tion pro­ceed­ings, val­ue €220,000
• Rep­re­sen­ta­tion of a road con­struc­tion com­pa­ny before the Region­al Court of Erfurt due to vio­la­tions of the VOB/A, pre­lim­i­nary injunc­tion pro­ceed­ings, val­ue. approx. 100.000 €
• Rep­re­sen­ta­tion of a con­sult­ing firm due to an unlaw­ful nar­row­ing of the suit­abil­i­ty cri­te­ria in the award of a con­sult­ing con­tract for the pro­cure­ment of large equip­ment, pre­lim­i­nary injunc­tion pro­ceed­ings, val­ue € 200,000
• Rep­re­sen­ta­tion of a paint­ing com­pa­ny before the Region­al Court of Dres­den due to unlaw­ful suit­abil­i­ty require­ments and unlaw­ful exclu­sion of the offer, pre­lim­i­nary injunc­tion pro­ceed­ings, val­ue approx. 84,000 €

Com­pen­sa­tion for dam­ages

Fol­low­ing breach­es of pub­lic pro­cure­ment law, there may be a vari­ety of claims for dam­ages, which we enforce on behalf of bid­ders and appli­cants. We rep­re­sent pub­lic clients and grant recip­i­ents in the event of unjus­ti­fied claims.

A typ­i­cal cat­e­go­ry of dam­age is the neg­a­tive inter­est. It is par­tic­u­lar­ly, but not only, rel­e­vant after an unlaw­ful annul­ment. In this case, the bid­der demands to be treat­ed as if it had nev­er heard of the pro­cure­ment pro­ce­dure. This is because in this case, the bid­der would not have made any eco­nom­ic effort to par­tic­i­pate in the pro­ce­dure. It is there­fore par­tic­u­lar­ly impor­tant for con­tract­ing author­i­ties to cor­rect­ly doc­u­ment the deci­sion to can­cel the con­tract as part of their pro­cure­ment com­pli­ance.

Anoth­er cat­e­go­ry of dam­ages is pos­i­tive inter­est. Unlike in many oth­er Euro­pean Union coun­tries, a bid­der in Ger­many does not have to have con­test­ed a review pro­ce­dure in order to claim com­pen­sa­tion for pos­i­tive inter­est. This puts con­tract­ing author­i­ties under mas­sive pres­sure, par­tic­u­lar­ly in the case of deci­sions to exclude first-placed bid­ders. They should there­fore not make such deci­sions with­out thor­ough exam­i­na­tion. Often, argu­ments are made pre­ma­ture­ly on the basis of alleged for­mal errors.

Cas­es:

• Rep­re­sen­ta­tion of a bypassed bid­der against a statu­to­ry health insur­ance com­pa­ny, claim for dam­ages based on the pos­i­tive inter­est, out-of-court set­tle­ment for a high five-dig­it amount
• Rep­re­sen­ta­tion of a law firm that had been ignored in an award pro­ce­dure, claim for dam­ages based on the pos­i­tive inter­est, out-of-court set­tle­ment for 95% of the assert­ed claim
• Numer­ous court rep­re­sen­ta­tions aimed at com­pen­sa­tion for neg­a­tive inter­ests fol­low­ing breach­es of pub­lic pro­cure­ment law (e.g. Chem­nitz Region­al Court — 3 S 52/22; Magde­burg Region­al Court — 10 O 181/22; Munich High­er Region­al Court — 1 U 1804/21)
• Rep­re­sen­ta­tion of a tow­ing com­pa­ny against a police head­quar­ters in the first and sec­ond instance (LG Wies­baden — 9 O 587/20; OLG Frank­furt — 11 U 39/21) Instance (LG Wies­baden — 9 O 587/20; OLG Frank­furt — 11 U 39/21) to claim dam­ages in a five-dig­it amount to com­pen­sate for finan­cial loss­es as a result of an unjus­ti­fied block­ing of an award.

Pro­cure­ment block

If a bid­der is alleged to have com­mit­ted seri­ous mis­con­duct or to have per­formed a pre­vi­ous con­tract poor­ly, this can lead to an award ban.

It goes with­out say­ing that con­tract­ing author­i­ties can­not impose award restric­tions at will. Instead, they must com­ply with strict legal require­ments. In par­tic­u­lar, they should be famil­iar with the rel­e­vant case law and doc­u­ment the rea­son for block­ing just as care­ful­ly as their dis­cre­tionary con­sid­er­a­tions. This means that they should address the pros and cons of block­ing the award of con­tracts.

We sup­port pub­lic con­tract­ing author­i­ties in the imple­men­ta­tion and doc­u­men­ta­tion of the block­ing deci­sion. We also defend their block­ing deci­sion both before the review bod­ies and before the ordi­nary courts.

For bid­ders, we check in advance whether the block­ing deci­sion was law­ful­ly imposed. Some­times they should not take action against it — even if there is a chance of suc­cess on the mer­its — e.g. because the block­ing deci­sion will not be pub­lished in the reg­is­ter or because the max­i­mum per­mis­si­ble block­ing peri­od is about to expire. Often, how­ev­er, there is no real alter­na­tive to a legal dis­pute, which we will res­olute­ly pur­sue on your behalf if there is suf­fi­cient prospect of suc­cess.

Cas­es:

• Enforce­ment of the lift­ing of a pro­cure­ment ban due to an alleged breach of trust
• Enforce­ment of the lift­ing of a pro­cure­ment ban fol­low­ing vio­la­tions of the right of res­i­dence
• Enforce­ment of the lift­ing of a pro­cure­ment ban fol­low­ing an inves­ti­ga­tion into bod­i­ly injury

Con­tract adjust­ment, ter­mi­na­tion, defect and sup­ple­men­tary dis­pute pro­ceed­ings

We rep­re­sent clients and con­trac­tors as well as main con­trac­tors and sub­con­trac­tors in dis­putes con­cern­ing their con­trac­tu­al rights and oblig­a­tions aris­ing from pub­lic con­tracts and sub­con­trac­tor agree­ments. This can be a dis­pute over defects or a dis­pute over a delay in per­for­mance. Often it is sim­ply a mat­ter of con­tract adjust­ment or remu­ner­a­tion claims.

In addi­tion to tra­di­tion­al rep­re­sen­ta­tion in con­struc­tion law, we are also active in more unusu­al areas of con­tract law, e.g. in the secu­ri­ty and safe­ty indus­try, in build­ing clean­ing or in rela­tion to nation­al defense.

Cas­es:

• Out-of-court rep­re­sen­ta­tion of a secu­ri­ty ser­vice provider due to alleged vio­la­tions of con­trac­tu­al pro­vi­sions and the ArbZG, val­ue approx. 82,000 euros
• Out-of-court rep­re­sen­ta­tion due to a tar­iff adjust­ment, val­ue approx. 81,000 euros
• Legal rep­re­sen­ta­tion due to a tar­iff adjust­ment, val­ue 105,000 euros
• Sep­a­ra­tion of a secu­ri­ty com­pa­ny from a sub­con­trac­tor con­tract in the Rhine-Main area

Com­pe­ti­tion law dis­putes

In the bat­tle for pub­lic con­tracts, com­peti­tors some­times act unfair­ly. The pub­lic pro­cure­ment review bod­ies offer only imper­fect pro­tec­tion here, as they only review the vio­la­tion of bid­der-pro­tect­ing rights in the award pro­ce­dure. This is not the case with the civ­il courts, which ensure com­pli­ance with the law against unfair com­pe­ti­tion in response to cor­re­spond­ing appli­ca­tions. We take action on behalf of bid­ders and appli­cants against unfair mar­ket manip­u­la­tion mea­sures. Typ­i­cal cas­es include unlaw­ful attempts to poach employ­ees, mis­lead­ing infor­ma­tion to the pub­lic sec­tor, for exam­ple regard­ing alleged unique sell­ing points, or breach­es of applic­a­ble law when apply­ing for pub­lic con­tracts or in the course of their exe­cu­tion.

Cas­es:

• KG — 5 U 9/22 (mis­lead­ing infor­ma­tion about alleged unique sell­ing propo­si­tion when plac­ing a direct order)
• Magde­burg Region­al Court — 7 O 1109/21 (vio­la­tion of the Legal Ser­vices Act when apply­ing for a pub­lic con­tract)
• LG Franken­thal — 6 O 248/16 (vio­la­tion of phar­ma­ceu­ti­cal and phar­ma­cy law require­ments in the exe­cu­tion of a pub­lic con­tract)