Review procedures before the Judicial Review Chamber and the Higher Regional Court are controversial:
The Legal protection below the thresholds before the Public Procurement Tribunals and the Higher Regional Court is not standardized by law. The German procurement law is purely budgetary dominated and thus an internal right without subjective rights for bidders. This restriction of procurement law protection for national proceedings was considered by the Federal Constitutional Court to be constitutional.
Administrative Law Rejection of threshold – Legal Protection
The question of whether primary legal protection is also possible in national procurement procedures is really controversial. Some of the (upper) Administrative Courts have allowed the review of procurement proceedings with a justification, that the award of a public procurement procedure is preceded by a public tender procedure, which will be under administrative review, the Federal Administrative Court by order of 2 May 2007 (Ref.: BVerwG 6 B 10.07) considered that the appeal before the administrative courts was not opened, but that the civil law procedure was in place.
The public sector moves in the direction of public contracts awarding in the field of private law. However, many Higher Regional Courts reject the granting of legal protection in the absence of thresholds. As a result, the legal position remains unclear, so that a statutory provision on legal protection below thresholds would be preferable.
One of the most important Procurement Courts, the Higher Regional Court of Düsseldorf, also responsible for the awarding cases of the Federal Cartel Office, however, believes that the legal process is also below the threshold.