OLG Dres­den con­firms strict require­ments for ex-ante trans­paren­cy notice !

On August 28, 2025, the High­er Region­al Court of Dres­den ruled (case ref­er­ence: Verg 1/ 25) that the vol­un­tary ex-ante trans­paren­cy notice in the upper thresh­old area does not offer any pro­tec­tion against the dec­la­ra­tion of nul­li­ty of de fac­to awards if the con­tract­ing author­i­ty has not care­ful­ly exam­ined the admis­si­bil­i­ty require­ments for an award with­out pri­or pub­li­ca­tion. In the case of an exclu­sive tech­ni­cal posi­tion, this includes in par­tic­u­lar a Europe-wide mar­ket inves­ti­ga­tion.

Our video dis­cussing the judg­ment:

Facts: The failed direct award despite cer­ti­fi­ca­tion

The deci­sion sheds light on the rig­or­ous lim­its of direct award (nego­ti­at­ed pro­ce­dure with­out a call for com­pe­ti­tion) pur­suant to Sec­tion 14 (4) VgV, even if the con­tract­ing author­i­ty assumes a tech­ni­cal­ly unique posi­tion.

The ini­tial sit­u­a­tion: A max­i­mum care hos­pi­tal need­ed soft­ware for time record­ing and per­son­nel resource plan­ning (PDP) that had to be able to be inte­grat­ed into the exist­ing hos­pi­tal infor­ma­tion sys­tem (HIS). Although a func­tion­ing data exchange via an inter­face was essen­tial, the client decid­ed to award the con­tract direct­ly to provider A. This was based on the assump­tion that the provider was the only one in Europe with a cer­ti­fied inter­face from the HIS oper­a­tor.

The legal pro­tec­tion error: The client pub­lished a vol­un­tary ex-ante trans­paren­cy notice before the con­tract was con­clud­ed and con­clud­ed the con­tract after the ten-day stand­still peri­od had expired. It was not until five and a half months lat­er that a com­peti­tor object­ed to the award of the con­tract and applied for a dec­la­ra­tion of nul­li­ty of the con­tract.

Key point of the deci­sion: The appar­ent safe­ty of ex ante pro­tec­tion

The High­er Region­al Court of Dres­den reject­ed the imme­di­ate appeal of the client, who had already lost in the first instance, and ruled that the con­tract was invalid. It was not law­ful to assume a tech­ni­cal­ly unique posi­tion.

The prob­lem with the “pow­er­ful instru­ment”: The con­tract­ing author­i­ty could not pro­tect itself by means of the vol­un­tary ex ante trans­paren­cy notice pub­lished before the con­tract was con­clud­ed. The require­ments for this seem­ing­ly pow­er­ful instru­ment have long been strict­ly inter­pret­ed by the pub­lic pro­cure­ment review bod­ies.

The applic­a­ble stan­dard: The OLG Dres­den applies a “sub­jec­tive-objec­tive” stan­dard of care. This cor­re­sponds to a grad­u­at­ed test pro­gram:

Objec­tive stage (deter­mi­na­tion of the facts): First of all, it must be estab­lished that the client has deter­mined the facts com­plete­ly and cor­rect­ly. Here, the High­er Region­al Court of Dres­den shows its col­ors: In the case of alleged unique tech­ni­cal fea­tures, it con­sid­ers a Europe-wide mar­ket inves­ti­ga­tion to be nec­es­sary.

Sub­jec­tive lev­el (jus­ti­fi­a­bil­i­ty): Final­ly, the con­clu­sions drawn by the client from these facts must at least be sub­jec­tive­ly jus­ti­fi­able.

As the hos­pi­tal did not car­ry out a Europe-wide mar­ket explo­ration and only relied on an inad­e­quate mar­ket sound­ing, it already failed at the objec­tive stage. The require­ments for a direct award were not met.

Tips for pub­lic clients: Care­ful prepa­ra­tion

The rul­ing is a clear state­ment: the assump­tion of a tech­ni­cal­ly unique posi­tion requires a robust exam­i­na­tion.

In the case of a unique posi­tion: exten­sive mar­ket explo­ration: If you are rely­ing on a unique tech­ni­cal posi­tion, you must doc­u­ment a Europe-wide mar­ket sur­vey. An incom­plete mar­ket sur­vey (e.g. relat­ing only to parts of the ser­vice or geog­ra­phy) deprives the deci­sion of an objec­tive basis.

No pro­tec­tion with­out foun­da­tion: The pro­tec­tion of the ex-ante trans­paren­cy dis­clo­sure only applies in the nar­row area of rea­son­able con­clu­sions (sub­jec­tive lev­el) from a ful­ly estab­lished set of facts (objec­tive lev­el).

Tips for bid­ders and appli­cants: Pro­tect your rights to fair com­pe­ti­tion

D con­firms the effec­tive legal pro­tec­tion options for bid­ders in the event of inad­mis­si­ble de fac­to awards.

Focus on the mar­ket explo­ration: In the case of direct awards, check whether the con­tract­ing author­i­ty can pro­vide evi­dence of the Europe-wide mar­ket explo­ration for the claimed unique tech­ni­cal posi­tion. The deci­sion pro­vides the objec­tive bench­mark for this.

Oblig­a­tion to give notice of defects does not apply: In the case of a de fac­to award, i.e. the con­clu­sion of a con­tract with­out pri­or Europe-wide pub­li­ca­tion, the oblig­a­tion to give notice of defects pri­or to the appli­ca­tion for a dec­la­ra­tion of nul­li­ty does not apply.

Long dead­line for review: If no sub­se­quent con­tract award notice has been issued, you have up to six months after con­clu­sion of the con­tract to apply for a dec­la­ra­tion that the con­tract is invalid.