Bidder-protecting rights in the award procedure are the basis
Procurement procedures must be carried out in accordance with the law. The focus here is on compliance with bidder protection rights. Not all, but most public procurement law standards grant bidder-protecting rights. This means that these standards protect the principles of competition, equal treatment and transparency in the interests of participants and interested parties in the award procedure.
Bidders and applicants may essentially demand the following,
- to be treated equally or not to be treated unequally without justification,
- to be informed transparently,
- to obtain all the information required to submit an economically viable tender,
- not to be burdened with excessive, unreasonable demands.
Who enforces this?
The European Union recognized some time ago that bidder-protecting rights are of little value without the possibility of review. It therefore requires the member states of the European Union to provide for public procurement review procedures.
This is regulated in the Remedies Directive; in its official version it is called “Directive 2007/66/EC of the European Parliament and of the Council of December 11, 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (Official Journal of the European Union of December 20, 2007 No. L 335, p. 31 et seq.), including the aforementioned amended directives”. For the sake of simplicity, we will refer to this as the “Remedies Directive”.
The Remedies Directive was implemented in Germany in Sections 155 et seq. GWB. According to Section 155 GWB, the award of public contracts and concessions is subject to review by the public procurement chambers. Pursuant to Section 156 (1) GWB, the federal procurement chambers review public contracts and concessions attributable to the federal government, while the procurement chambers of the federal states review public contracts and concessions attributable to them. There are therefore federal procurement chambers and procurement chambers of the individual federal states. We have compiled a list for you.
Is a procurement chamber a court?
The answer is yes and no.
The public procurement tribunals carry out their activities independently and on their own responsibility within the framework of the law, see Section 157 (1) GWB. They decide with a chairman and two assessors, whereby at least one of the decision-makers must be a fully qualified lawyer, see Section 157 (2) ARC. This speaks for the court character.
At the same time, however, the public procurement tribunals are integrated into the general structure of the authorities. Moreover, their full-time members are civil servants and not judges.
Therefore, procurement tribunals are not courts, but they are similar to courts. Their members are independent in their decisions and generally behave as such. A bidder or applicant need not fear that their application will not be processed because it is “not approved”. Their rights are also institutionally safeguarded by the establishment of independent procurement tribunals.
Is every award reviewed by the procurement chamber?
The procurement chamber does not review every award. It would not even be in a position to do so, as hundreds of award procedures are carried out every day. Rather, it only acts upon request, cf. section 160 (1) GWB. A bidder or candidate can make this request if they believe that their rights have been disregarded.
At the same time, the public procurement tribunals in Germany are not responsible for every award, even if a bidder requests a review of this award. This is because the Remedies Directive and the transposition provisions in Sections 155 et seq. GWB only apply to above-threshold awards. These are award procedures for contracts that reach the EU thresholds. For supply and service contracts of normal public contracting authorities, this is currently (as of 1.1.2024) e.g. 221,000 euros net. For construction contracts currently 5.538 million euros. This means that for lower-value contracts, the procurement chamber will declare that it has no jurisdiction. It will reject an application for review relating to such low-value contracts as inadmissible. It should be noted, however, that very often it is not the value of the individual contract that matters, but the value of the entire (construction/service) project, meaning that even low-value contracts of just a few tens of thousands of euros may end up before the procurement chamber.
What are the current EU thresholds?
The EU thresholds are set for two years.
You can find the current values for 2024/25 in our overview.
Are there review options for sub-threshold contracts?
If the EU threshold is not reached, the question arises as to whether and, if so, what other legal protection is available. This must be looked at carefully in each individual case. Some federal states (Thuringia, Saxony, Saxony-Anhalt, Rhineland-Palatinate) have set up their own sub-threshold legal protection. Similar to the public procurement chambers, specialized bodies review award procedures upon request before the contract is awarded to a competitor, as the contract is usually lost once the contract is awarded. They often do this for very little money. If such an option is available, it should be given priority, not only for cost reasons, but also for other reasons.
In the other federal states and in the case of the federal administration, there are not (yet) any such sub-threshold awarding chambers that take action on application before the contract is awarded. Here, there is still the option of appealing to the courts by way of interim legal protection.
We have lost before the procurement chamber. What happens now?
Contracting authorities and bidders and candidates who have lost “their” review procedure can apply for legal protection before the second instance. This is the competent higher regional court. Around one fifth of cases before the Public Procurement Chamber are continued before the Higher Regional Court.
Anyone who may have represented themselves before the procurement chamber should seek the help of a specialized law firm now at the latest.
What requirements must the application for review meet?
There are many requirements for a successful contract award review. The contract must be awarded by a contracting authority and be a public contract or concession. The procurement chamber must have jurisdiction, i.e. the EU threshold must have been reached. The contract must not yet have been awarded. As a rule, the bidder or candidate must have complained about the infringement of rights protecting bidders in order to give the contracting authority the opportunity to remedy this infringement without 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.
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
