Review procedure of the tendering proceedings before the public procurement supervisory tribunal

A review procedure of the tendering proceedings before the public procurement supervisory committee (tribunal) starts only at request of a company.

Certain formalities have to be respected, in order to avoid the rejection at the time of the review procedure.

Federal Cartel Office and Public Procurement Tribunals of the respective German Länder

 Public procurement tribunals both at a federal and provincial level are present on the German territory. The Federal Government is affiliated to the Cartel Office.

Summary Expiration of the Review Proceedings

 It is an „administrative instance“ that, with an administrative act, decides whether infringement from the applicant is present. This must be done from the start of the proceedings with an exchange of opinions of the parties and, if necessary, oral proceedings that are generally possible within one month.

In its decision, the Public Procurement Tribunal will take appropriate measures to eliminate an infringement and to prevent severe “injuries” to the company concerned. The review procedure can also be rejected or withdrawn.

The contracting authority receive the company´s application with the result that this former my not award the contract until the public procurement authority has decided on the application and the appeal period (to the competent higher regional court) of 2 weeks has expired.

If the contract has already been awarded, it shall not be cancelled. After the definitive awarding of the contract, the possibilities of legal protection for the tenderer end in the review procedure.

Duty of notification of the forthcoming contracting award

In order to allow a company to avail of legal protection, it is therefore imperative to inform about the proposed surcharge 14 days before the awarding of the contract.

Costs of the review procedure

 The fees of the Federal Procurement Chamber are between EUR 2500 and 25000. Please consider that attorney fees of the parties also have to be calculated.

Complaints and review proceedings in public procurement law

According to § 160 (1) GWB, the public procurement tribunal shall initiate review proceedings (Rüge) only upon application.

Paragraph § 160 (3) of the GWB specifies that an application becomes inadmissible if the applicant became aware of the violation of public procurement provisions during the awarding procedure, but did not complain to the contracting entity without undue delay. The application is also considered inadmissible if violations of public procurement provisions which become apparent from the tender notice are not notified to the contracting entity by the end of the period for the submission of a tender or application specified in the notice. If violation of public procurement is not notified to the contracting entity by the end of the period for the submission of a tender or application specified in the notice, the application is also inadmissible. After the expiration of 15 calendar days since receipt of notification from the contracting entity that is unwilling to redress the complaint, the application is unlawful.

Immediacy of the review proceedings (10-Days Limit)

According to a number of procurement boards and senates, a review proceeding has to be raised within ten days. It has to be recognizable to the client by describing the alleged facts and remedial action.

For reason of evidence, the complaint not linked to a particular form shall be made per e-mail, fax or written letter.

Whether the immediacy of the complaint withstands the European provisions, is actually really controversial. The procurement tribunals are trying to leave this question mark open.

Public procurement procedures

Open procedure (EU-Procurement Law)/ public tendering (national award)           

We talk about open procedures (for national proceedings below the EU thresholds: public tendering) in the specific case of contracting authority publicly requesting an unlimited number of companies to submit their offers.

Restricted procedure (EU-Procurement Law/ restricted tendering (national award)

A procedure is considered restricted (Europe-wide) in case the contracting authority selects a limited number of companies on the basis of objective, transparent and non-discriminatory criteria (competitive bidding), before requesting a limited number of companies from the applicant group to tenders.

Negotiation procedure (EU-Law Granting) / direct award (national award)

The negotiation procedure (in the case of national procedures below the EU threshold: direct award), allows inter alia, negotiations on the terms of contract with the companies.

The negotiation procedure with competitive bidding has been subjected to more simplified admission requirements since the procurement law reform. It has to be taken into consideration in case of contracts for conceptual or innovative solutions, or in contracts that require prior negotiation on the basis of specific circumstances related to the nature, complexity or legal or financial framework and corresponding risks.

Competitive Dialog (EU-Procurement Law)

The competitive dialogue (only in the case of European procurement procedures), gives the contracting authority even more room for negotiation with tenderers.

Innovative Partnership (EU-Procurement Law)

In an innovative partnership (only in the case of European awarding proceedings), the contracting authorities negotiate initial and follow-up offers, subsequently to the competitive bidding, in several phases with the selected companies.