Procurement procedures are by no means only reviewed by procurement chambers and OLG senates. In fact, the review activities of the review bodies represent only the smallest part of all procurement controls. Contracting authorities are often confronted with critical inquiries or in-depth reviews by the review authorities responsible for them. Many people are not at all clear which review authorities exist, what their responsibilities are and how they — as contracting authorities — can defend themselves against them, or how they — as bidders or applicants — can pursue their interests with the involvement of such an authority.
Apart from the review bodies, which other authorities review award procedures?
In some federal states, there are procurement review bodies that review a procurement procedure not in response to a bidder complaint and not before the award decision, but before it is initiated or when it has long been completed. They are sometimes internal advisors to the public sector, sometimes internal control bodies. These bodies are often called “award review bodies”, and sometimes there is also a “VOB body” that reviews construction contracts.
In addition to such review bodies, there are various other official bodies that more or less regularly review procurement procedures — usually in the public interest. These include
- Courts of Auditors
- Audit offices
- Funding bodies and their agents responsible for checking payments and proof of use
- Promotional banks, often in their function as funding providers
- National inspection bodies (usually in connection with the granting of subsidies)
- EU inspection bodies (usually in connection with the granting of subsidies)
- Private individuals who have been assigned the tasks of an inspection body (usually in connection with the granting of subsidies)
No real review body
Procurement review bodies should not be confused with the procurement chambers, which initiate review procedures upon request above the EU thresholds and thus block the award of contracts. As a rule, they must also be strictly distinguished from the few procurement chambers below the EU thresholds that exist in some federal states, even if these procurement chambers sometimes have similar or even exactly the same name (“Vergabeprüfstelle”). They differ from review bodies in that they do not intervene in an ongoing procurement procedure in the interests of bidder protection and in response to a legally binding bidder application. Occasionally, however, they also act as complaints bodies to which bidders and applicants, citizens or other interested parties can generally complain informally about one or more award procedures, albeit sensibly stating a reason; as a rule, however, there is no entitlement to action by the award review body.
The system of public procurement review by public procurement tribunals and higher regional courts
How is it ensured that award procedures are enforced in accordance with the law and how are bidders’ rights protected? In our article on the system of public procurement review by public procurement tribunals and higher regional courts, we shed light on all aspects relevant to you as a contracting authority.
Procurement audits by audit offices
Some municipal constitutions explicitly state this. According to these, the municipal audit offices are allowed to audit contracts before they are awarded as part of the local audit. The award committees of the municipal councils generally also want to see the corresponding audit opinion before they “wave through” an award. If the note is refused, this can lead to the award procedure being postponed. For bidders and applicants, it is therefore often an effective means of preventing the award of a contract to a competitor, particularly in award procedures in which no real review procedure is permitted (but not only in these!). They do this by drawing the attention of the municipal auditors to irregularities. In turn, contracting authorities should beware. The head of the audit office very often acts independently. The mayor or district administrator, and above all the local council, will listen to him. The procurement file should therefore be handed over to the audit office in a proper manner.
Award audits by funding bodies
Many inspection bodies are linked to funding bodies. Sometimes they are institutionally integrated into the funding bodies, sometimes they act on their behalf. Their task is to check whether the funding has been used in accordance with the law before it is disbursed. Legally compliant means, above all, compliant with procurement law. Even later, when the proof of use is submitted, they check the award procedures on which the claimed expenditure was based more or less intensively.
Revocation of funding in the event of a serious award error
Are you threatened with a revocation of funding? Or would you like to tender the contract award in such a way that award errors are ruled out as far as possible? Then arrange a free initial consultation here.
What responsibilities do the courts of audit have?
As a rule, the courts of audit do not audit procurement procedures in full and certainly not on a regular basis. However, they do ask to see and review procurement files, especially for larger projects. If they identify errors in this respect, the contracting authority or funding provider, who must allow the audit to pass, must act quickly. If the audit report states that breaches of procurement law have been identified, this usually means that the management expects action to be taken. It is not uncommon for employees to lose their jobs in the wake of such reports or for a significant amount of funding to be revoked and reclaimed. Therefore, from the perspective of the contracting authority and the funding provider, it is imperative under all circumstances to dispel any misconceptions on the part of the auditors — who are sometimes not particularly well versed in public procurement law — and to prevent the inclusion of misinformation in the audit result.
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.
Send us your request
How to reach us
Main location Leipzig
Lessingstraße 2
04109 Leipzig
Germany
Contact us
Phone: +49 341 238203 — 00
Fax: +49 341 238203 — 29
E‑mail: info@abante.de
