Awarding of public contracts and concessions; request for review of an EU-wide award procedure

The Public Procurement Tribunals decide in the first instance on formal applications for review by bidders or candidates.

Description

Prerequisites

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

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

Procedure

Requests for review of award procedures are to be addressed to the competent award chamber (if the contracting authority has its registered office in the administrative district of Upper Bavaria, Lower Bavaria or Swabia, the award chamber of Southern Bavaria is competent; for the administrative districts of Central, Upper and Lower Franconia as well as Upper Palatinate, the award 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 not permitted.

The substantiation of 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 against the client; 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 Procurement Chamber may not provide advice or legal information outside of review proceedings.

For the review of tendering and awarding of construction works according to 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 institutions, their associations and the (dental) associations of the health insurance funds
  • as well as private contracting authorities, insofar as they are required to comply with the award regulations in the notice of allocation and the VOB office is specified as the review body in the notice,

VOB offices exist in all seven governments to provide advice both above and below the EU thresholds.

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

Deadlines

  • Infringements of procurement regulations which the applicant has identified before submitting the request 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 regulations which are identifiable on the basis of the notice must be notified by the expiry of the deadline for submission of bids/applications (Section 160 (3) sentence 1 no. 2 ARC).
  • Infringements of procurement regulations which are identifiable on the basis of the award documents (terms and conditions of application/contract documents) must be notified by the expiry of the deadline for submission of bids/applications (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 wish to rectify a complaint (Section 160 (3) sentence 1 no. 4 ARC).

Processing time

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

Contracting authorities must expect extensions of the above-mentioned period.

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.

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 Procurement Chamber as well as the attorney's fees of the prevailing party shall be borne by the party who loses the proceedings. As a rule, the fee is between 2,500 and 50,000 euros. In individual cases, the fee may be reduced to one tenth or increased to 100,000 euros (Section 182 GWB). Pursuant to Section 16 of the Administrative Costs Act, an advance on costs is charged in the amount of the statutory minimum fee of 2,500 euros.

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 Procurement Chamber 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 entities under public law.

Upon filing the notice of appeal, the other parties to the proceedings before the Procurement Board shall be informed by the appellant by sending a copy of the notice of appeal.

Links to more information

Status:04.05.2023

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
  • Form, Bavaria-wide
  • Form, locally limited
  • Prefillable Form, Bavaria-wide
  • Legal bases, Bavaria-wide
  • Legal bases, locally limited
  • Fees, Bavaria-wide
  • Fees, locally limited
Bild zur Leistungsbeschreibung

Responsible for you

If you select a location under "Localization" the contact details of the responsible authority and, if applicable, locally valid information will be displayed.