Award of public contracts and concessions; request for review of an EU-wide procurement procedure

The Public Procurement Tribunals are the first instance for reviewing the award of public contracts and concessions in EU-wide award procedures. They act in a quasi-judicial manner and decide independently and only bound by the law on formal requests for review by bidders or candidates.

Description

The Public Procurement Tribunals of Northern and Southern Bavaria examine award procedures of public contracting authorities pursuant to Section 99, sector contracting authorities pursuant to Section 100 and concession awarding authorities pursuant to Section 101 of the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB), which have their seat in Bavaria, unless the Public Procurement Tribunals of the Federal Republic of Germany are competent.

The Southern Bavarian Public Procurement Chamber is also responsible for awarding contracts to

  • the German Research Institute for Food Chemistry, Garching near Munich
  • the German Museum Munich
  • the Ifo Institute for Economic Research e.V. Munich
  • the Institute for Contemporary History, Munich
  • the Max Planck Society Munich

The Procurement Chamber of Northern Bavaria is also responsible for awarding contracts to the Germanisches Nationalmuseum, Nuremberg.

The award procedure of public contracts and concessions as well as the organisation of competitions whose estimated contract or contract value excluding turnover tax reaches or exceeds the respective threshold values can be reviewed (Section 106 GWB, Section 3 VgV).

The Public Procurement Tribunal initiates review proceedings only upon application. Any enterprise having an interest in the public contract or concession and claiming an infringement of its rights due to non-compliance with procurement rules is entitled to file an application. The applicant must show that it has suffered or is in danger of suffering damage as a result of the alleged infringement of the procurement rules.

Prerequisites

An applicant for review proceedings can only be an economic operator who has an interest in the public contract or the concession and claims a violation of his rights due to non-compliance with the procurement rules. Pursuant to Section 160 ARC, the admissibility of an application for review is regularly subject to the condition that the applicant has previously complained to the contracting authority about the relevant infringement of procurement rules.

The economic operator must show that it has suffered or is in danger of suffering damage as a result of the alleged infringement of procurement rules.

This only applies to those contracts and concessions whose estimated contract value or total contract value equals or exceeds the respective EU threshold.

Procedure

Requests for review of award procedures are to be addressed to the competent public procurement chamber (if the contracting authority has its seat in the administrative district of Upper Bavaria, Lower Bavaria or Swabia, then the Public Procurement Chamber of Southern Bavaria is competent; for the administrative districts of Central, Upper and Lower Franconia as well as Upper Palatinate, the Public Procurement Chamber of Northern Bavaria is competent).

The application must be submitted in writing and must be substantiated without delay. It should contain a specific request.

Submission by fax is possible. Submission by e-mail is inadmissible.

The statement of the grounds for the request must contain the name of the defendant, a description of the alleged infringement with a statement of the facts and the designation of the available evidence, as well as a statement that the complaint has been made to the contracting authority; it should name the other parties involved, if known.

An applicant without domicile or habitual residence, registered office or management in the Federal Republic of Germany shall name an authorized recipient within the Federal Republic of Germany.

Special notes

Due to its quasi-judicial mode of operation, the Public Procurement Tribunal may not give advice and may not provide legal information outside of review proceedings.

For the review of invitations to tender and the award of works contracts in accordance with the VOB/A below the EU threshold value

  • of the state building offices (state measures with measures of the castles and lakes administration),
  • the water management offices,
  • all municipal contracting authorities, with the exception of the districts,
  • the social insurance agencies, their associations and the (dental) associations of the health insurance funds, and
  • as well as private contracting authorities, insofar as compliance with the award regulations was imposed on them in the notification of award and the VOB office is stated as the review body in the announcement,

and for advice both above and below the EU thresholds, there are VOB offices in all seven governments.

The VOB offices also advise the above-mentioned contracting authorities on questions of tendering and awarding services under the UVgO below and under the GWB, VgV, SektVO and KonzVgV once the EU threshold value has been reached, including the award of architectural and engineering services under the VgV, RPW and HOAI.

Deadlines

  • Infringements of procurement rules which the applicant has identified before submitting the application for review must be notified to the contracting authority within a period of ten calendar days (Section 160 (3) sentence 1 no. 1 ARC).
  • Infringements of procurement rules which are identifiable on the basis of the notice must be notified by the expiry of the time limit for submission of tenders/applications (Section 160 (3) sentence 1 no. 2 ARC).
  • Infringements of procurement rules which are identifiable on the basis of the award documents (conditions of application/contract documents) must be notified by the expiry of the time limit for submission of tenders/application (Section 160 (3) sentence 1 no. 3 ARC).
  • An application for review is inadmissible if more than 15 calendar days have elapsed after receipt of the contracting authority's notification that it does not intend to remedy a complaint (Section 160 (3) sentence 1 no. 4 ARC).

Processing time

The Procurement Chamber shall take and state the reasons for its decision in writing within a period of five weeks from receipt of the request. The extension of this time limit by the Procurement Chamber is possible.

Contracting authorities must expect extensions of the above-mentioned time limit.

Required documents

  • Notice in the EU Official Journal - if available

    (necessary to establish jurisdiction)

  • Rejection letter according to § 134 GWB - if available

    (helpful in determining urgency).

  • Proof of the complaint - unless exceptionally dispensable

    (usually a prerequisite for a decision on the merits)

Forms

Please select a location in "Localization" so that the address of the responsible authority can be filled in.

  • Prefillable Form, Bavaria-wide: Formloser Antrag (mit Unterschrift)
    Please note

    This form has to be signed and sent to the responsible authority. You can sign the form manually and send it by email/fax or sign the form electronically with your qualified electronic signature an send it by (secure) email. If the responsible authority has set up a De-Mail account, you can also send the form by De-Mail using an sender-confirmed message.

    Dieser Assistent unterstützt Sie bei der Erstellung eines formlosen Schreibens, wenn die zuständige Stelle kein Antragsformular zur Verfügung stellt.

Fees

  • Costs shall be charged for the review proceedings before the Procurement Chamber in accordance with the Administrative Costs Act. The fees and expenses of the Public Procurement Tribunal as well as the attorneys' fees of the prevailing party shall be borne by the party who loses the proceedings. As a rule, the fee amounts to between 2,500 Euro and 50,000 Euro. In individual cases, the fee may be reduced to one tenth or increased to 100,000 Euro (Section 182 ARC). Pursuant to Section 16 of the Administrative Costs Act, an advance on costs amounting to the statutory minimum fee of 2,500 euros is charged.

Remedy

An immediate appeal (Section 171 ARC) against the decision of the Public Procurement Tribunal may be lodged in writing with the Bavarian Supreme State Court, Cartel and Public Procurement Senate in Munich within an emergency period of two weeks (Section 172 ARC), which begins with the notification of the decision.

The immediate appeal must be substantiated at the same time as it is filed. The statement of grounds for appeal must contain:

  1. The statement to what extent the decision of the Public Procurement Tribunal is contested and a deviating decision is requested,
  2. a statement of the facts and evidence on which the appeal is based.

The notice of appeal must be signed by a lawyer admitted to practice before a German court. This does not apply to appeals filed by legal persons under public law.

Upon filing the notice of appeal, the appellant shall inform the other parties to the proceedings before the Board of Appeal by sending them a copy of the notice of appeal.

Links to more information

Status: 20.08.2021

Responsible for editing: Bayerisches Staatsministerium für Wirtschaft, Landesentwicklung und Energie

Contains machine translated content. Show the original content

  • Online transactions, Bavaria-wide
  • Online transactions, locally limited
  • Prefillable Form, Bavaria-wide
  • Legal bases, Bavaria-wide
  • Legal bases, locally limited
  • Fees, Bavaria-wide
  • Fees, locally limited
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