Complaint in the award procedure

Obligation to give notice of defects pursuant to § 160 para. 3 ARC

The law distinguishes between three obligations to give notice of defects and a subsequent application deadline:

No. 1 - Recognized violations: Award violations that the bidder has positively recognized must be reported within ten calendar days of becoming aware of them. The deadline is absolute; there is no provision for extension or reinstatement. Case law interprets "knowledge" objectively: The decisive factor is what a competent bidder should have recognized upon careful examination of the documents.

No. 2 - Violations recognizable from the notice: These must be reported by the application or tender deadline at the latest.

No. 3 - Violations recognizable from the tender documents: These must also be reported by the deadline for application or tender submission at the latest.

No. 4 - Time limit after notification of non-remedy: If the contracting authority has notified that it does not intend to remedy the complaint, the application for review must be submitted within 15 calendar days of receipt of this notification. Otherwise, the procurement chamber is prevented from reaching a decision on the merits.

Exception: No obligation to report certain serious violations

Not every breach of public procurement law must be reported first. In the event of serious breaches of the publication obligation - in particular in the case of so-called de facto awards, i.e. the award of a contract without prior Europe-wide publication - it is possible to directly assert the invalidity of the concluded contract in accordance with Section 135 GWB. A prior complaint is not a prerequisite for admissibility in these cases. However, the 30-day deadline of Section 135 (2) GWB after the announcement of the award of the contract or the absolute deadline of six months from the conclusion of the contract must be observed.

Form and content

The ARC does not prescribe a specific form. However, written form - by e-mail or letter - is strongly recommended, as the timely receipt by the client must be proven in the event of a dispute.

In terms of content, the complaint must specifically and comprehensibly state the breach of contract that is the subject of the complaint, clearly describe the conduct of the contracting authority that is the subject of the complaint and demand a remedy. General formulations are not sufficient to meet the obligation to give notice of defects. Each breach must be described individually and specifically.

Complaint following the information letter pursuant to Section 134 GWB

After receipt of the information letter pursuant to Section 134 GWB, a statutory waiting period applies: the contracting authority may not award the contract until at least 15 calendar days after sending the notification; in the case of electronic transmission, this period is reduced to 10 calendar days. For bidders, this letter typically marks the start of the 10-day period pursuant to Section 160 (3) No. 1 GWB, provided that the letter gives rise to indications of breaches of public procurement law.

Complaint in the sub-threshold area

Below the EU thresholds, there are no uniform federal regulations. Some state procurement laws expressly provide for an obligation to give notice of defects; in other states, case law has developed a corresponding requirement. An examination of the applicable state law is essential.

Note: No legal advice.