Procurement Law

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Public procurement – the challenges

Around 12% of gross domestic product in the EU Member States is accounted for by goods and services that must be sourced in line with the provisions of public procurement law. Examples include the award of major contracts for infrastructure and construction, IT and healthcare, and procurement in the transport, energy and defence sectors. Public procurement law poses special challenges for contracting authorities and contractors: it is complex with regard to content, strictly formalised in terms of the types of procedure and subject to constant change. Contracting authorities that make errors when putting contracts out to tender run the risk of lengthy review and appeal proceedings in front of award review bodies. This can set back the planning and realisation of a project by years. Tenderers aiming to win a public tender likewise need deep familiarity with the applicable rules. Even the smallest procedural mistakes can result in exclusion. In addition, recipients of subsidies must comply with public procurement law as per the notice of approval. They risk having to repay the subsidy if they make any mistakes in this regard.

Public procurement law with sector-specific expertise

CMS Germany has long been among the leading law firms in the field of public procurement law. More than 20 lawyers are available to provide support at seven locations across Germany. This means we are not only geographically close to clients, but also able to structure, implement and assist with even the largest procurement projects at any time. Our lawyers combine many years of practical experience with in-depth academic knowledge from their work as editors and authors of highly regarded publications on public procurement law (such as the “General Commentary on Legislation relating to the Award of Public Contracts” (Gesamtkommentar zum Recht der öffentlichen Auftragsvergabe), 2nd edition 2021), articles in legal journals and the daily press, and as speakers at specialist events. Our focus is on providing practical and industry-specific legal advice. We understand the environment in which you operate and the issues facing your market segment. Based on an assessment of the legal aspects and business perspective, we develop the optimal procurement strategy for your project, in alignment with the type of procedure. This approach means that contracting authorities can be assured of structuring the award procedure in a legally compliant manner, while tenderers have a better chance of winning the contract.

Feel free to contact us!

Specific industry experience

Our lawyers benefit from in-depth experience and extensive specialist knowledge in a range of fields. We can support projects in the following areas, for example:

  • Energy and climate change
  • Health, pharmaceutical industry and e-health
  • IT and telecommunications
  • Security and defence
  • Transport, infrastructure and construction
  • Utilities and waste disposal

The CMS procurement law team is cross-disciplinary in nature and provides efficient, real-world advice on public procurement processes to both contracting authorities and tenderers – always backed by the necessary industry knowledge.

Dr. Christian Scherer, Partner

Familiar with both sides of procurement procedures

The CMS procurement law team represents both public contracting authorities and private companies. We understand the different needs and requirements of the two sides.

We advise contracting authorities with the aim of ensuring legally compliant structuring, preparation and implementation of their procurement procedures. For tenderers, we provide legal support when they apply for public contracts and optimise their chances of being awarded the contract. If a dispute arises, we represent contracting authorities and tenderers in proceedings before public procurement tribunals, the award divisions of the higher regional courts, the civil and administrative courts, the European Commission and the European courts (ECJ, General Court).

Award procedure – services for contracting authorities:

  • Clarification of the scope of public procurement law 
  • Advice on procurement strategy
  • Involvement in drafting tender notices and tender documents
  • Support for e-procurement
  • Advice on answering tenderers’ questions and responding to complaints
  • Support around the evaluation of tenders
  • Preparing and conducting bidder discussions and negotiations
  • Advice on contract award, concluding the contract and documenting the procedure
  • Representation in review proceedings, sub-threshold complaint proceedings and other disputes

Award procedure – services for tenderers:

  • Development of strategies for competitive tenders and when submitting tenders
  • Agreements on joint applications and consortium bids
  • Dealing with incorrect specifications
  • Support in complex and time-consuming procurement procedures 
  • Support for foreign tenderers when entering the market
  • Involvement in drafting and optimising bid documents
  • Advice on notification duties, as well as the content and timing of procedural complaints
  • Support with regard to self-cleaning in the event of doubts about eligibility or in connection with the competition register
  • Representation in review proceedings and other disputes
  • Support for subsidy recipients with regard to requirements under procurement and budgetary law

Global solutions for cross-border tenders

CMS has the biggest public procurement legal team in Europe. A powerful international network of more than 170 lawyers worldwide is available to handle cross-border public procurement cases. Within this global context, the individual members specialise in different sectors, giving us a deep understanding of the different markets and different types of awards. Our international teams regularly collaborate and advise both contracting authorities and private companies on major strategic procurement processes at European and global level.

What others say about us: 

"Very good accessibility and very quick response, both by telephone and email, the advice is based on very broad and well-founded knowledge of the current legal situation and on excellent knowledge of practice and the industry (energy and infrastructure sector)."

The Legal 500 EMEA 2022

„Die Vergabepraxis zeichnet sich durch eine branchenbezogene Struktur und gute regionale Verankerung der Anwälte aus; gleichzeitig zählt sie zu den größten im Markt.“

JUVE Handbuch 2022/2023

„Das breit aufgestellte u. personell starke Vergaberechtsteam ist deutschlandweit regional verankert und punktet mit seinem Know-how in versch. Branchen.“

JUVE Handbuch 2021/2022

“As one of the top addresses for in public procurement law, CMS' practice is spread across several locations and can draw on longstanding cooperation with cities and municipalities as well as on sound industry know-how in the infrastructure, construction, utilities, IT and communication, health and defence sectors.“

The Legal 500 EMEA 2022

„Stärken: Betreuung zahlreicher langfristig angelegter und umfangreicher Großprojekte.“

JUVE Handbuch 2020/2021

Please contact us.

Portrait ofStefan Höß
Dr. Stefan Höß
Portrait ofHermann Müller
Dr. Hermann Müller, LL.M. (The University of Edinburgh)
Portrait ofChristian Scherer
Dr. Christian Scherer
Portrait ofJakob Steiff
Dr. Jakob Steiff, LL.M. (Edinburgh)
Dr. Volkmar Wagner
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