Information - Services - Formalities by subjects - Public tenders - EU-wide tenders - Awarding of public contracts and concessions; request for review of an EU-wide award procedure - Dienstleistungsportal Bayern

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 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 in Munich
• the Ifo Institute for Economic Research e.V. Munich
• the Institute of 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 awarding procedure of public contracts and concessions as well as the organization of competitions whose estimated contract or contract value excluding value-added tax reaches or exceeds the respective threshold values can be reviewed (Section 106 GWB, Section 3 VgV).

The Procurement Chamber shall initiate review proceedings only upon application. Any company having an interest in the public contract or the concession and claiming a violation of its rights due to non-compliance with procurement regulations 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 regulations.

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.

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 Public Procurement Tribunal may not give advice and may not provide legal information outside of review proceedings.

For the review of the invitation to tender and the award 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 clients, 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 compliance with the award regulations has been imposed on them in the notice of allocation and the VOB office has been specified as the review body in the notice,

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

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.

  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 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.

Legal bases

• § 155 ff. Gesetz gegen Wettbewerbsbeschränkungen (GWB)
• Verordnung über die Vergabe öffentlicher Aufträge (Vergabeverordnung - VgV)
• Verordnung über die Vergabe von öffentlichen Aufträgen im Bereich des Verkehrs, der Trinkwasserversorgung und der Energieversorgung (Sektorenverordnung - SektVO)
• Verordnung über die Vergabe von Konzessionen (Konzessionsvergabeverordnung - KonzVgV)
• Vergabe- und Vertragsordnung für Bauleistungen - Teil A (VOB/A)
• Verordnung zur Regelung von Organisation und Zuständigkeiten im Nachprüfungsverfahren für öffentliche Aufträge (BayNpV)
• Geschäftsordnung der Vergabekammer

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

• Vergabekammern des Bundes