If the bidder or candidate is convinced that the award procedure was carried out incorrectly, they can initiate a review procedure through the responsible award chamber — usually after the complaint has been raised, but before the contract is awarded. The possibility of a review procedure exists primarily in the above-threshold area (in a few federal states also in the below-threshold area) and is regulated in Sections 160 et seq. GWB.
Responsibility
The Public Procurement Chamber decides on award procedures whose subject matter is a public contract within the meaning of Section 103 GWB or a concession within the meaning of Section 105 GWB.
Public contracts within the meaning of Section 103 (1) GWB are “contracts for pecuniary interest concluded between contracting authorities or contracting entities and undertakings for the procurement of services having as their object the supply of goods, the execution of works or the provision of services.”
Concessions within the meaning of Section 105 ARC are contracts for consideration in which companies are commissioned by concession grantors either with construction services, for which they receive the right to use the construction (plus a payment, if applicable) as consideration, or with the provision and management of services, for which they receive the right to use the service (plus a payment, if applicable) as consideration.
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The award procedure ends with the award of the contract by the contracting authority. The contract award is the acceptance of a tender, whereby the contract between the contracting authority and the successful bidder is concluded. In the upper threshold area, contracting authorities have an obligation to inform and wait in accordance with Section 134 (1) GWB. This means that the contracting authority informs the unsuccessful bidders before awarding the contract that their bid will not be considered, when the earliest possible award date is and who is to be awarded the contract and for what reasons. From the time this notification is sent, there is a 15-day standstill period during which the contract may not be awarded. This period can be shortened to 10 days if certain formal requirements are met; the period is usually shortened.
A review procedure can only be successfully initiated before the expiry of this period, i.e. only before the contract is awarded. Only in the case of particularly serious breaches of the procurement regulations (disregard of the information and waiting obligation or award of the contract without the required ex ante publication of a notice in the Official Journal of the European Union) is the concluded contract invalid pursuant to Section 135 (1) GWB. However, this invalidity can only be determined in a review procedure. The time limits set out in Section 135 (2) GWB apply to this. In the cases of Section 135 (1) GWB, a review procedure (in the form of a nullity determination procedure) is therefore exceptionally possible after the contract has been awarded. As a rule, however, the application for review must be filed in good time so that it can be served before the contract is awarded.
Form and content pursuant to Section 161 GWB
The application must be submitted in writing and substantiated. The statement of grounds must include the name of the defendant, a description (as specific as possible) of the alleged infringement and the evidence (if available). In addition, the application must state that the complaint has been made to the client.
Defendant
The defendant must be a contracting authority within the meaning of Section 98 GWB. Such contracting authorities are public contracting authorities pursuant to Section 99 GWB, sector contracting authorities pursuant to Section 100 GWB and concession awarding authorities pursuant to Section 101 GWB.
A contracting authority within the meaning of Section 99 GWB is an institution or body belonging to the public sector, such as regional authorities (cities, municipalities, federal states), their special funds and other legal entities, including those under private law, which perform non-commercial tasks in the public interest.
Sector contracting entity within the meaning of Section 100 (1) GWB are contracting authorities or certain natural or legal persons under private law that carry out sector activities in the areas of water, electricity, gas and heat, transport, ports and airports or fossil fuels. (Sector activities specifically in Section 102 GWB)
Concession grantor within the meaning of Section 101 (1) GWB are contracting authorities that award a concession within the meaning of Section 105 I GWB. Concession providers are also sector contracting authorities in the areas of electricity, gas and heat, transport, ports and airports or fossil fuels that award such a concession.
EU threshold
The contract value under public procurement law must have reached the relevant EU threshold value within the meaning of Section 106 GWB.
Entitlement to file an application pursuant to Section 160 (2) GWB
Bidders or candidates who have an interest in the public contract or concession and assert a breach of procurement regulations that infringes their own rights are entitled to submit an application. The bidder or applicant must demonstrate that the infringement has caused damage or threatens to cause damage.
Interest: The company must have a direct interest in obtaining the contract for itself. The interest is usually sufficiently demonstrated with the submission of a timely tender. However, interest may also exist if a bid is not submitted. Please do not hesitate to contact us.
Impending violation of rights or damage: It must at least appear possible that the company’s rights under Section 97 (6) GWB have been infringed as a result of non-compliance with procurement regulations. The damage must relate to the bidder’s or applicant’s chances of being awarded the contract. The applicant must plausibly demonstrate that the infringement complained of has a negative impact on the consideration of its bid or application in the context of the award of the contract. For this purpose, it is sufficient that the occurrence of damage cannot be ruled out from the outset. It follows that the bidder or applicant must conclusively demonstrate that it at least has the possibility of being awarded the contract if the procurement regulations are applied correctly.
Obligation to give notice of defects pursuant to Section 160 (3) No. 1–3 GWB: The bidder/candidate must notify the contracting authority of the suspected infringement prior to the review procedure. It must do so within 10 days of becoming aware of the infringement. If the infringement is apparent from the contract notice or the tender documents, it must be notified by the end of the deadline for submitting a request to participate or submitting a tender. The exact requirements are set out in Section 160 (3) GWB and the relevant case law.
No special formal requirements apply to the complaint, although a written complaint is highly recommended for reasons of proof and documentation. If the bidder or candidate fails to submit a complaint in advance, he is usually, but by no means always, denied the opportunity for review.
Legal consequences pursuant to Section 168 GWB
The procurement chamber either grants the application in full or in part and takes appropriate measures to remedy the infringement (for example, the chamber can order the procurement procedure to be restored to its previous state), or it rejects the application. An immediate appeal may be lodged against the decision of the procurement chamber.
How we can help you
If you are a contracting authority, bidder or applicant, we can represent you before the Public Procurement Chamber and the Higher Regional Court Senate.
For a non-binding inquiry, please contact one of our contact persons directly by phone or e‑mail or use the contact form.
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Phone: +49 341 238203 — 00
Fax: +49 341 238203 — 29
E‑mail: info@abante.de
