In the context of public procurement law, a protest (or Rüge) is a formal objection raised by a bidder who believes that the procurement process has not been conducted in accordance with applicable legal and procedural requirements. The review procedure (or Nachprüfungsverfahren) is the formal process through which such complaints are examined and resolved by a public procurement review body, such as a procurement tribunal or court.
1. Protest (Rüge)
A bidder can submit a protest if they believe the procurement process was flawed. Common reasons for raising a protest include:
- Violation of procurement rules: For example, if the contracting authority did not follow the advertised criteria or missed mandatory requirements.
- Unfair treatment: If one bidder was given an unfair advantage, for instance, through unequal treatment or lack of transparency in the evaluation of bids.
- Improper exclusion: If a bidder believes they were wrongfully excluded from the process.
Example:
A company submits a bid for a public construction contract. After the tender opening, they notice that one of their competitors submitted a late bid, which was nevertheless accepted. The company files a protest (Rüge), arguing that the late submission violated the tender conditions.
The protest must typically be filed immediately after the bidder becomes aware of the issue, but the exact deadline depends on the jurisdiction. In many cases, the protest must be submitted within 10 to 15 days from the date the bidder becomes aware of the violation.
2. Review Procedure (Nachprüfungsverfahren)
Once the protest (Rüge) is filed, the contracting authority or the relevant public procurement review body must assess the complaint.
Steps in the Procedure:
- Initial assessment: The review body first evaluates whether the protest is justified and whether the bidder’s claims are based on valid legal grounds.
- Decision on the protest: The review body may issue a decision, such as ordering a suspension of the procurement process, instructing the contracting authority to re-evaluate the bids, or even canceling the procurement if it finds that the process was non-compliant with the law.
- Possible appeal: If the review body does not rule in the bidder’s favor, the bidder may have the option to appeal the decision to a higher court or tribunal, depending on the jurisdiction.
Example:
After reviewing the complaint regarding the late submission, the procurement review body might decide that the late bid should not have been accepted. As a result, the body may instruct the contracting authority to disqualify the late bidder, giving the protesting company another chance to win the contract.
3. Timing and Deadlines
The timing of the review procedure (Nachprüfungsverfahren) varies by jurisdiction but generally follows this sequence:
- Filing the Protest: The bidder must file the protest within a certain number of days after becoming aware of the issue, typically within 10 to 15 days.
- Response from the Contracting Authority: The authority typically has a short period to respond to the protest, often within a few days to a week.
- Decision by the Review Body: The review body must issue a ruling within a specified period, often between 15 and 30 days after the protest is filed.
- Appeal: If the bidder is not satisfied with the ruling, they may appeal the decision. The appeal process can take several more weeks, depending on the complexity of the case.
Example Timeline:
- Day 0: Bidder becomes aware of the violation (e.g., late bid accepted).
- Day 1-10: The bidder submits the protest (Rüge).
- Day 11-20: The contracting authority reviews the protest and issues a response.
- Day 21-30: The procurement review body issues a decision.
- Day 31-60: If necessary, the bidder may file an appeal, extending the process.
Conclusion
The review procedure (Nachprüfungsverfahren) provides an important legal avenue for bidders to challenge procurement decisions they believe to be unlawful or unfair. It ensures transparency, fairness, and compliance with procurement regulations. The exact timeline for the procedure depends on local laws, but it generally takes place over a period of several weeks to a few months, with clear deadlines for each step.