Trans­paren­cy in the award pro­ce­dure: BVer­wG spec­i­fies bid­ders’ rights to infor­ma­tion

A recent rul­ing by the Fed­er­al Admin­is­tra­tive Court (BVer­wG 10 C 5.24 — rul­ing from Decem­ber 17, 2025) pro­vides fur­ther clar­i­ty: bid­ders have a right to access the eval­u­a­tion of their own bid after the con­clu­sion of an award pro­ce­dure — based on the Free­dom of Infor­ma­tion Act (IFG).

The case: Access to infor­ma­tion under the IFG

In the under­ly­ing case, a plain­tiff unsuc­cess­ful­ly par­tic­i­pat­ed in a call for ten­ders by the Fed­er­al Employ­ment Agency. With­out ini­ti­at­ing a review pro­ce­dure, it request­ed access to the doc­u­men­ta­tion of the eval­u­a­tion of its own bids, cit­ing the IFG. After the low­er court (VGH Munich, VGH 5 BV 22.1295 — judg­ment of June 21, 2024) had already ruled in favor of the plain­tiff, the BVer­wG has now also con­firmed this claim.

The deci­sion: Pub­lic pro­cure­ment law does not con­flict with IFG

The defen­dan­t’s appeal was unsuc­cess­ful. The BVer­wG clar­i­fied that pub­lic pro­cure­ment reg­u­la­tions do not take prece­dence over the Free­dom of Infor­ma­tion Act once the pro­ceed­ings have been con­clud­ed.

Key points of the deci­sion:

• Pro­tec­tive pur­pose of the VgV: Sec­tion 5 (2) sen­tence 2 VgV pro­tects com­pa­ny infor­ma­tion from being dis­closed to third par­ties.
• No exclu­sion for self-assess­ment: This pro­tec­tion does not apply if a bid­der only requests infor­ma­tion on the assess­ment of its own bid.
• Com­pet­i­tive neu­tral­i­ty: There is no anti-com­pet­i­tive advan­tage, as access to infor­ma­tion is in prin­ci­ple also open to com­pet­ing bid­ders.

Clas­si­fi­ca­tion: The pub­lic pro­cure­ment law per­spec­tive

While the BVer­wG’s deci­sion pri­mar­i­ly con­firms the admin­is­tra­tive law per­spec­tive on access to infor­ma­tion on one’s own bid, the more far-reach­ing per­spec­tive under pub­lic pro­cure­ment law is also rel­e­vant in prac­tice.

The ECJ already clar­i­fied on 17.11.2022 (Case C‑54/21 — ANTE A POLSKA and oth­ers) that, under cer­tain con­di­tions, there may even be rights to infor­ma­tion regard­ing the eval­u­a­tion of oth­er bid­ders. The recent rul­ing by the Fed­er­al Admin­is­tra­tive Court should fur­ther raise aware­ness of these con­stel­la­tions and their prac­ti­cal impli­ca­tions.

Con­clu­sion for prac­tice

The afore­men­tioned deci­sions under­line the impor­tance of trans­par­ent pro­cure­ment pro­ce­dures. Access to infor­ma­tion is not just a legal frame­work, but a key fac­tor for trust and fair­ness in com­pe­ti­tion.

Press release of the Fed­er­al Admin­is­tra­tive Court: Bid­der’s access to infor­ma­tion to jus­ti­fy the eval­u­a­tion of its own bid under pub­lic pro­cure­ment law | Press release no.96/2025 of 18.12.2025