Legal protection in the procurement procedure

Table of contents

For participants in EU-wide tenders, the Act against Restraints of Competition (GWB) provides extensive legal protection. The procedure is divided into 3 stages, which build on each other:

 

Complaints to the contracting authority

If a bidder recognizes that the contracting authority is violating procurement law regulations, it must complain about the conduct of the contracting authority within 10 calendar days. Infringements that are already apparent from the notice must be reprimanded at the latest by the end of the application or bidding period. If the bidder fails to submit a complaint within the time limit, an application for review in this respect shall also be inadmissible, at least to this extent. If the bidder has successfully reprimanded, but the contracting authority does not respond or does not respond with the required measures, the bidder must submit a request for review within 15 calendar days of receipt of the contracting authority's notice of non-reaction. Otherwise, a review by the Public Procurement Tribunal is again excluded. Attention, the complaint has no suspensive effect. Thus, in case of doubt, the procurement procedure continues even if the complaint may be successful from the bidder's point of view.

 

Application for review to the Public Procurement Tribunal

If the contracting authority has not remedied the bidder's complaint or has not responded in time, the bidder can and should file an application for review. In the upper threshold range, the public procurement tribunals will only act upon application. Any company which has an economic interest in the tendered contract and which considers its rights to have been infringed by the conduct of the contracting authority is entitled to file an application. The application must be substantiated. Reasons for filing an application may include violations of applicable regulations, unlawful agreements, or failure to publicly tender for a contract. In principle, the bidder must have previously complained about the alleged infringement of the law. A request for review is subject to costs. As a rule, an advance payment of EUR 2,500 must be made, which is refunded in the event of success, as the costs of the proceedings must be borne by the unsuccessful party. Only and exclusively the service of the application for review of the award of contract leads to a prohibition of the award of the contract. This means that the contracting authority may not award the contract. As a rule, the Public Procurement Tribunal must issue a relevant decision within 5 weeks. However, it often extends the decision deadline.

 

Immediate appeal to the Higher Regional Court

If the Public Procurement Tribunal does not reach a decision within the stated, possibly extended period or if it decides to the disadvantage of the applicant, the applicant may file an appeal with the competent Higher Regional Court within two weeks.

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