Germany

October 2018

The procurement directives 2014/23/EU, 2014/24/EU, and 2014/25/EU were transposed into German law on 18 April 2016.

1. Where can one find public procurement notifications for Germany?

2. What are the relevant thresholds for the applicability of German procurement law?

  • Above the EU thresholds, the following national regulations apply:

All services/supplies

Act Against Restraints on Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB), Section 4 – Award of Public Contracts (§§ 97 et seq.)

All services/supplies except services/supplies within the transport, water and energy sectors or concessions

Regulations on the Award of Public Contracts (Verordnung über die Vergabe öffentlicher Aufträge – VgV)

Construction services

Section 2 of the Regulations on Contract Awards for Construction Services (Vergabe- und Vertragsordnung für Bauleistungen – VOB/A-EU)

Services/supplies within the transport, water and energy sectors

Regulations on Contract Awards in the Transport, Water and Energy Sectors (Sektorenverordnung – SektVO)

Concessions

Regulations on the Award of Concession Contracts (Konzessionsvergabeverordnug – KonzVgV)

Services/supplies within the defence and security sector

Regulations on Contract Awards in the Defence and Security Sector (VSVgV)

Construction services within the defence and security sector

Section 3 of the Regulations on Contract Awards for Construction Services (Vergabe- und Vertragsordnung für Bauleistungen –VOB/A-VS)

  • Below the EU thresholds, the following national regulations apply:

Construction services

Section 1 of VOB/A

Supplies and services

Regulations on the Award of Public Supply and Service Contracts below the EU-thresholds (Unterschwellenvergabeordnung – UVgO) or Section 1 of VOL/A

  • For the permissibility of directly awarding contracts and applying the restricted procedure, the following thresholds apply at the national and state level (in EUR):
Supplies and services

Federation (Bund)/Federal state (Bundesland)

Direct Award

Restricted Tender Procedure

Federation

not defined

not defined

Baden-Wuerttemberg (state)

50,000

100,000

Bavaria (local communities)

50,000

100,000

Bavaria (state)

50,000

not defined

Berlin

10,000

100,000

Brandenburg (local communities)

100,000

100,000

Brandenburg (state)

20,000

20,000

Bremen

50,000

100,000

Hamburg

50,000

100,000

Hesse

50,000 to 100,000

207,000

Mecklenburg-Western Pomerania

100,000

100,000

Lower Saxony

25,000

50,000

North Rhine-Westphalia (local communities)

100,000

100,000

North Rhine-Westphalia (state)

15,000

50,000 to 100,000

Rhineland-Palatinate

20,000

40,000

Saarland

10,000 to 15,000

50,000 to 100,000

Saxony

25,000

not defined

Saxony-Anhalt

25,000

50,000

Schleswig-Holstein

100,000

100,000

Thuringia

20,000

50,000

Construction Services

Federation (Bund)/Federal state (Bundesland)

Direct Award

Restricted Tender Procedure

Federation

10,000

a. Extension work, landscape construction, road equipment: up to 50,000
b. Remaining work up to 100,000
c. Underground construction engineering, traffic route construction and civil engineering up to 150,000

Baden-Wuerttemberg (local communities)

20,000

50,000 to 150,000

Baden-Wuerttemberg (state)

10,000

50,000 to 150,000

Bavaria (local communities)

50,000

125,000 to 500,000

Bavaria (state)

10,000

50,000 to 150,000

Berlin

20,000 to 50,000

200,000 to 500,000

Brandenburg (local communities)

100,000

1,000,000

Brandenburg (state)

20,000

200,000

Bremen

50,000

500,000

Hamburg

100,000

1,000,000

Hesse

100,000 per technical lot

100,000 to 1,000,000 per technical lot

Mecklenburg-Western Pomerania

200,000

1,000,000

Lower Saxony

25,000

50,000 to 150,000

North Rhine-Westphalia (local communities)

100,000

1,000,000

North Rhine-Westphalia (state)

not defined

50,000 to 150,000

Rhineland-Palatinate

10,000

50,000 to 150,000

Saarland

10,000

50,000 to 150,000

Saxony

25,000

50,000 to 150,000

Saxony-Anhalt

10,000

50,000 to 150,000

Schleswig-Holstein

100,000

1,000,000

Thuringia

50,000

150,000

  • Additional information can be found in the following fact sheet provided by the Contract Advisory Centre Hesse: https://www.absthessen.de/pdf/Wertgrenzen_Bund_%20Bundesländer_2017.pdf
  • Federal states have also enacted state laws providing for additional procurement rules, which are in part applicable only in relation to contracts exceeding specific thresholds.
  • In 2018 and 2019 the Regulations on the Award of Public Supply and Service Contracts below the EU-thresholds (Unterschwellenvergabeordnung – UVgO) are gradually being introduced by federal states and at a local level. The thresholds and procedures may deviate.

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure (competitive procedure with negotiation/negotiated procedure without prior publication), (iv) competitive dialogue, (v) innovation partnership?

  • Above the EU thresholds
  • Above the EU thresholds and depending on the relevant German regulations (see Question 2) the circumstances for the applicability of the different procedures are the following:

Section 2 VOB/A
(applicable for construction services, see Question 2)

Open procedure (Offenes Verfahren):

  • The contracting authority may choose the open procedure or the restricted procedure with a prior call for competition.

(§ 3a EU (1) VOB/A)

Restricted procedure with a prior call for competition (nicht offenes Verfahren mit Teilnahmewettbewerb):

  • The contracting authority may choose the open procedure or the restricted procedure with a prior call for competition.

(§ 3a EU (1) VOB/A)

Negotiated procedure with a prior call for competition (Verhandlungsverfahren mit Teilnahmewettbewerb) is permissible:

  • If the needs of the contracting authority cannot be met without adapting readily available solutions;
  • If the contract includes design or innovative solutions;
  • If the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial makeup of the contract or because of the risks attaching to them.
  • If the technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European Technical Assessment, common technical specification or technical reference within the meaning of points 2 to 5, Annex VII of Directive 2014/24/EU.
  • If an open or a restricted procedure has been annulled because only irregular or unacceptable tenders were submitted.

(§ 3a EU (2) VOB/A)

Negotiated procedure without a call for competition (Verhandlungsverfahren ohne Teilnahmewettbewerb) is permissible:

  • If in response to an open or restricted procedure:
  • only irregular or unacceptable tenders were submitted, and
  • the negotiated procedure includes all of, and only, the tenderers from the prior procedure that have the professional qualification and the capability and were not excluded due to § 6e EU VOB/A;
  • If in response to an open or restricted procedure:
  • no tenders or requests to participate were submitted, or
  • only tenders or requests to participate were submitted from tenderers that do not have the professional qualification or the capability, or which were excluded due to § 6e EU VOB/A, or
  • only tenders were submitted that do not satisfy the conditions of the procurement documents;
  • provided that the initial procurement documents are not substantially altered;
  • If the works, supplies or services can be supplied only by a particular economic operator because:
  • the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance, or
  • competition is absent for technical reasons, or
  • the protection of exclusive rights, including intellectual property rights;
  • provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
  • If it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority which prevent the authority from complying with the time limits for the open or restricted procedures or competitive procedures with negotiation; or
  • If similar works are repeated and the works are entrusted to the economic operator by the same contracting authority that awarded the original contract, provided that those works are conform with a basic project for which the original contract was awarded pursuant to a procedure in accordance with § 3a EU VOB/A.

(§ 3a EU (3) VOB/A).

Competitive dialogue (Wettbewerblicher Dialog) is permissible:

  • In all cases where a negotiated procedure with a prior call for competition may be applied.

(§ 3a EU (4) VOB/A).

Innovation partnership (Innovationspartnerschaft) is permissible:

  • If the aim is the development of innovative works as well as the subsequent purchase of the resulting works, provided that the needs of the contracting authority cannot be satisfied by readily available works on the market.

(§ 3a EU (5) VOB/A).

VgV
(applicable for all services/supplies except services/supplies within the transport, water and energy sectors or concessions, see Question 2)

Open and Restricted procedure (Offenes und nicht offenes Verfahren)

  • The contracting authority may choose the open procedure or the restricted procedure with a prior call for competition.

(§ 14 (2) VgV)

Negotiated procedure with a prior call for competition (Verhandlungsverfahren mit Teilnahmewettbewerb) is permissible:

  • If the needs of the contracting authority cannot be met without adapting readily available solutions;
  • If the contract includes design or innovative solutions;
  • If the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial makeup of the contract or because of the risks attaching to them.
  • If the technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European Technical Assessment, common technical specification or technical reference within the meaning of points 2 to 5 Annex 1of VgV.
  • If an open or a restricted procedure has been annulled because only irregular or unacceptable tenders were submitted.

(§ 14 (3) VgV)

Negotiated procedure without a call for competition (Verhandlungsverfahren ohne Teilnahmewettbewerb) is permissible:

  • If, in response to an open or restricted procedure, no or no suitable tenders, or no suitable requests to participate were submitted, provided that the initial conditions of the contract are not substantially altered.
  • If the contract can be supplied only by a particular economic operator because:
  • a unique work of art or a unique artistic performance will be created or acquired, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement, or
  • competition is absent for technical reasons, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement, or
  • of the protection of exclusive rights, including industrial property rights.
  • If it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority which prevent the authority from complying with the time limits for the open or restricted procedures or competitive procedures with negotiation.
  • If the products involved are manufactured purely for the purpose of research, experimentation, study or development; however, contracts awarded pursuant to this point must not include quantity production to establish commercial viability or to recover research and development costs.
  • If additional deliveries are purchased by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations and a change of supplier would oblige the contracting authority to acquire supplies with different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years.
  • If the supplies are quoted and purchased on a commodity market.
  • If there are particularly advantageous terms for the purchase of supplies or services, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.
  • If the contract concerned follows a design contest in the meaning of § 69 VgV and the contract is to be awarded, under the rules provided for in the design contest, to the winner or one of the winners of the design contest; in the latter case, all winners must be invited to participate in the negotiations.
  • If similar services are to be repeated and the services are entrusted to the economic operator by the same contracting authority that awarded the original contract, provided that those works conform with a basic project for which the original contract was awarded pursuant to a procurement procedure but not within a negotiated procedure without a call for competition.

(§ 14 (4), (5) VgV)

Competitive dialogue (Wettbewerblicher Dialog) is permissible:

  • In all cases were a negotiated procedure with a prior call for competition may be applied.

(§ 14 (3) VgV).

Social and other specific services (in the meaning of § 130 GWB):

  • The contracting authority may choose the open procedure or the restricted procedure with a prior call for competition as well as the negotiated procedure with a prior call for competition, the competitive dialogue and the innovation partnership. Negotiated procedure without a call for competition may only be applied under the circumstances set out in § 14 (4) VgV.

(§ 65 (1) VgV)

Architectural and engineering services:

  • Competitive procedure with a prior call for competition or competitive dialogue may be applied as a matter of course.

(§ 74 VgV)

SektVO
(applicable for services/supplies within the transport, water and energy sectors, see Question 2)

  • The contracting authority may choose the open procedure, the restricted procedure and the negotiated procedure with a prior call for competition.

(§ 13 (1) SektVO)

  • The negotiated procedure without a call for competition is permissible:
    • If no or no suitable tenders, or no or no suitable requests to participate were submitted in response to a procedure with a prior call for competition, provided that the initial conditions of the contract are not substantially altered.
    • If the contract is purely for the purpose of research, experiment, study or development, and not for the purpose of securing a profit or of recovering research and development costs, and insofar as the award of such contract does not prejudice the competitive award of subsequent contracts which do seek those ends, in particular.
    • If the contract can only be supplied by a particular economic operator because:
      • a unique work of art or a unique artistic performance will be created or acquired, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement,
      • competition is absent for technical reasons, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement,
      • of the protection of exclusive rights, including intellectual property rights.
    • If it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority which prevent the authority from complying with the time limits for the open or restricted procedures, or negotiated procedures with prior call for competition. The circumstances invoked to justify extreme urgency shall not in any event be attributable to the contracting entity.
    • In case of supply contracts for additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, and a change of supplier would oblige the contracting entity to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance.
    • If new works or services consisting in the repetition of similar works or services are assigned to the contractor to which the same contracting authorities awarded an earlier contract, provided that such works or services conform to a basic project which was awarded in a procurement procedure but not within a comparative procedure with negotiation without a call for competition.
    • If the supplies are quoted and purchased on a commodity market.
    • For bargain purchases, if it is possible to procure supplies by taking advantage of a particularly advantageous opportunity available for a very short time at a price considerably lower than normal market prices.
    • If the purchase of supplies or services can be made under particularly advantageous conditions from either a supplier which is definitively winding up its business activities or the liquidator in an insolvency procedure, an arrangement with creditors or a similar procedure under national laws or regulations.
    • If the service contract concerned follows a design contest in the meaning of § 60 SektVO and is to be awarded, under the rules provided for in the design contest, to the winner or to one of the winners of that contest; in the latter case, all the winners shall be invited to participate in the negotiations.

(§ 13 (2) SektVO)

The competitive dialogue can be applied if it happens in accordance with the conditions set up in the SektVO for that kind of procedure.

(§§ 13 (1), § 17 SektVO)

The innovation partnership can be chosen if the aim is the development of an innovative service as well as the subsequent purchase of the resulting service, provided that the needs of the contracting authority cannot be satisfied by works readily available on the market.

(§§ 13 (1), 18 (1) SektVO)

KonzVgV
(applicable for concessions, see Question 2)

  • No specified procurement procedures have to be chosen. The contracting authority can arrange the award procedure freely but in accordance with the KonzVgV.

(§ 12 (1) KonzVgV)

VSVgV
(applicable for contracts involving defence and security aspects, see Question 2)

  • In general, contracts are awarded in a restricted procedure with a prior call for competition or in a negotiated procedure with a prior call for competition.

(§ 11 (1) VSVgV)

  • In justified exceptional cases – the concrete conditions are not set out in detail – the contracting authority may award contracts in a negotiated procedure without a call for competition or in a competitive dialogue.

(§ 11 (1) VSVgV)

  • Below the EU thresholds
  • Below the EU thresholds and depending on the corresponding German regulations (see Question 2) the conditions under which the different procedures are applicable are as follows:

Section 1 VOB/A
(applicable for construction services, see Question 2)

Open procedure (Öffentliche Ausschreibung)

  • The contracting authority has to choose the open procedure as far as the peculiarity of the contract or specific circumstances do not justify another procedure.

(§ 3a (1) Section 1 VOB/A)

Restricted procedure (beschränkte Ausschreibung) is permissible:

  • If the contract value does not exceed the following thresholds:
    • Extension work, landscape construction, road equipment: up to EUR 50,000,
    • Underground construction engineering, traffic route construction and civil engineering: up to EUR 150,000,
    • Remaining work: up to EUR 100,000;
  • If the award did not have an acceptable result; or
  • If an open procedure is inappropriate for other reasons.

(§ 3a (2) Section 1 VOB/A)

Restricted procedure with a prior call for competition (beschränkte Ausschreibung mit Teilnahmewettbewerb) is permissible:

  • If the contractual performance can be adequately provided only by a limited number of companies.
  • If the preparation of the offer involves disproportionate efforts.

(§ 3a (3) Section 1 VOB/A)

There are no regulations regarding a negotiated procedure in Section 1; instead, a direct award (Freihändige Vergabe) is permissible:

  • If the open procedure or the restricted procedure is inexpedient, in particular if:
    • the services can be supplied for specific reasons only by a particular economic operator,
    • the services are necessary for reasons of urgency,
    • the services cannot be defined so clearly and exhaustively that sufficiently comparable tenders can be expected,
    • an open or restricted procedure has been annulled and an acceptable result is not to be expected within a new procedure,
    • it is necessary due to reasons of secrecy, or
    • a small service cannot be separated from a larger one without any disadvantage.
  • However, the principles of competition are applicable and, if relevant for the European market, a negotiated procedure with a prior call for competition is required.
  • If the contract value does not exceed the threshold of EUR 10,000 (excluding VAT).

(§ 3a (4) Section 1 VOB/A)

Section 1 VOL/A
(applicable for supplies and services, see Question 2)

Open procedure (Öffentliche Ausschreibung)

  • The contracting authority has to choose the open procedure if another procedure is not permissible.

(§ 3 (2) VOL/A)

Restricted procedure with a prior call for competition (beschränkte Ausschreibung mit Teilnahmewettbewerb) is permissible:

  • If the service can be adequately provided only by a limited number of companies.
  • If the open procedure is inexpedient for other reasons.

(§ 3 (3) VOL/A)

Restricted procedure without a call for competition (beschränkte Ausschreibung ohne Teilnahmewettbewerb) is permissible:

  • If an open procedure has not yielded an economically advantageous result.
  • If an open procedure involves disproportionate efforts for the contracting authority or the tenderers.

(§ 3 (4) VOL/A)

There are no regulations regarding a negotiated procedure in Section 1; instead, a direct award (Freihändige Vergabe) is permissible:

  • If a public or restricted procedure has been annulled and a repetition holds no prospect of an economically advantageous result.
  • If subsequent to development services, contracts of adequate scope and for adequate periods must be awarded to enterprises involved in the development.
  • If the supplies of goods or the provision of services are needed for the performance of specialist scientific-technical tasks in research, development and studies that are not intended for the purpose of maintaining the general operations and infrastructure of a contracting authority agency.
  • For repeat contracts of minor value following on an existing contract when no higher price is expected than for the initial performance and the repeat contracts altogether do not exceed 20 per cent of the value of the initial contract.
  • If replacement or accessory parts for machinery and equipment are to be obtained from the initial supplier and these parts cannot be procured at adequate quality or on economically advantageous terms and conditions from other enterprises.
  • If necessary for reasons of secrecy.
  • If due to circumstances that could not have been foreseen by the contracting authorities, the service is of special urgency and the reasons for such urgency cannot be ascribed to the conduct of the contracting authorities.
  • If the type and scope of services cannot be described clearly and exhaustively enough to be able to expect adequately comparable tenders.
  • If it is permissible under executive regulations of a federal minister or a federal state minister.
  • If contracts are to be awarded solely to workshops for disabled persons.
  • If contracts are to be awarded solely to penal establishments.
  • If the services can be supplied for specific reasons only by a particular economic operator.

However, the principles of competition are applicable and if relevant for the European market a negotiated procedure with a prior call for competition is required.

  • If the contract value does not exceed the threshold of EUR 500 (excluding VAT).

(§ 3 (5, 6) VOL/A)

A direct purchase (Direktkauf) is permissible:

  • If the contract value does not exceed the threshold of EUR 500 (excluding VAT).

(§ 3 (6) Section 1 VOL/A)

4. Which decisions of a contracting authority may be appealed?

  • In theory, an appeal may be lodged against any decision of the public contracting authority taken during the preparatory phase or during an award procedure which infringes or is likely to infringe the rights of the tenderer.
  • In fact, decisions below the EU thresholds are rarely successfully challenged. An appeal against a decision above the EU thresholds can be successful if the many legal peculiarities, such as short mandatory time limits and formal requirements, are met. In any case, it is strongly recommended to consult a lawyer specialized in public procurement law at an early stage.

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?

A specific legal framework for appeals in award procedures exists only above the EU thresholds. The procedure can be divided into 3 stages. Each stage has its own time limits. In general, the time limits are quite short. It should be noted that the procedures and deadlines may vary. The following instructions can be used as a general guideline. Failure to comply with a time limit leads to exclusion: the procedure becomes inadmissible and the specific infringement cannot be challenged.

  • Stage 1: Raising an objection (Rüge) against the contracting authority

If the appellant becomes aware of an infringement before initiating a review procedure (Nachprüfungsverfahren), the infringement must be the subject of an objection within 10 days. If the infringement is apparent from the contract notice or the procurement documents, the objection must be lodged before the time limit for the submission of a tender expires as specified in the contract notice. Please note: The criterion of unreasonable delay is no longer relevant due to changes in the law.

  • Stage 2: Review procedure (Nachprüfungsverfahren)

If the contracting authority fails to comply with the objection, the time limit for initiating a review procedure before the Public Procurement Chamber (Vergabekammer) is 15 calendar days from the date of receipt of the decision.

  • Stage 3: Immediate complaint (Sofortige Beschwerde)

If the review procedure before the Public Procurement Chamber (Vergabekammer) has been unsuccessful, an immediate appeal (Sofortige Beschwerde) may be lodged with the Higher Regional Court (Oberlandesgericht) within two weeks from the date of service (Zustellung) of the decision.

6. How long is the standstill period?

  • Above EU threshold;
    • The standstill period amounts to 15 calendar days from the day after the contracting authority dispatches the contract award decision in writing to the unsuccessful tenderers and candidates; the standstill period is reduced to ten calendar days if fax or electronic means are used (§ 134 (2) GWB).
    • There is no standstill period in cases in which negotiation procedures are justified without previous notification on grounds of extreme urgency (§ 134 (3) GWB).
  • Below EU threshold:
    • On a national level, there is no mandatory standstill period.
    • On a state level, some states stipulate standstill periods ranging from seven to ten days prior to the conclusion of the contract (see § 12 (1) Procurement Act Mecklenburg-Western Pomerania, § 8 (1) Procurement Act Saxony, § 19 (1) Procurement act Saxony-Anhalt and § 19 (1) Procurement Act Thuringia).

7. Which review bodies exist?

  • Above EU threshold:
    • Authority of first instance:
      • Review procedure (Nachprüfungsverfahren) is carried out by public procurement tribunals (Vergabekammern).
      • If the contract is attributable to the Federation, the review is undertaken by the national public procurement tribunals (Vergabekammern des Bundes) at the Federal Cartel Office (Bundeskartellamt) (§§ 156 (1), 158 (1) GWB).
      • Other contracts are reviewed by the competent state public procurement tribunals (Vergabekammern der Länder) in the form of administrative bodies.
    • Authority of second instance: immediate complaints (Sofortige Beschwerde) go to the award division (Vergabesenat) of the court of appeal (Oberlandesgericht), which has jurisdiction over the seat of the public procurement tribunal (§ 171 (3) GWB).
    • An overview of procurement tribunals and award divisions is available at the following link: www.bundesanzeiger-verlag.de.
  • Below EU threshold:
    • On a national level, there are no specific public procurement tribunals or other dedicated review bodies.
    • On a state level, some states have established review bodies, including Hesse, Saxony, Saxony-Anhalt and Thuringia (see § 20 Procurement Act Hesse, § 8 (2) Procurement Act Saxony, § 19 (2) and (3) Procurement Act Saxony-Anhalt, § 19 (2) and (3) Procurement Act Thuringia).
    • Apart from that, competitors may also bring actions before ordinary civil courts to prevent the contracting authority from entering into contracts. To secure their rights, they may seek interim legal protection under §§ 935 et seq. German Code of Civil Procedure (Zivilprozessordnung). Administrative courts may also be competent to hear specific matters such as certain concessions which are classified as public law contracts.
  • Review by the competent supervisory authority (Aufsichtsbehörde), including legal, functional and disciplinary supervision (see § 155 GWB).

8. Are there any filing fees for an appeal?

  • Authority of first instance (Vergabekammer): the procedural fee is between EUR 2,500 and EUR 50,000; in exceptional cases, e.g. those of significant economic interest, up to EUR 100,000 (§ 182 (2) GWB). In general, the assessment of fees depends on administrative efforts and economic interest. Every party has to bear this procedural fee if it loses the case.
  • Authority of second instance (Vergabesenate) and ordinary civil courts: fees depend on the value in dispute (Streitwert); the general German law on court fees (Gerichtskostengesetz) is applicable.
  • Besides the procedural fees, the unsuccessful party has to bear the legal defence costs incurred by the successful party. The legal defence costs also depend on the value in dispute (Streitwert); the general German law on lawyers’ fees (Rechtsanwaltsvergütungsgesetz) is applicable.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?

  • Above EU threshold:
    • As soon as the contracting authority receives written information from the review body about the initiation of a review procedure, the possibility of awarding the contract is suspended until the review procedures are complete (§ 169 (1) GWB).
    • On application by the tenderer, further interim measures can be ordered by the review body if other rights of the tenderer have been jeopardized during the award procedure (§ 169 (3) GWB).
  • Below EU threshold:

On a state level, only the Procurement Acts of Thuringia, Saxony and Saxony-Anhalt contain regulations providing for a suspension. The contracting authority may conclude the contract only if the review body does not – upon application of the tenderer – object to the award procedure within a certain time limit (see § 19 (2) Procurement Act Thuringia, § 8 (2) Procurement Act Saxony, § 19 (2) Procurement Act Saxony-Anhalt).

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EG

  • Upon application, a contract with a value above the EU thresholds can be declared ineffective ab initio by the review body if the contracting authority has violated § 134 GWB (standstill period) or has awarded a public contract directly to a company without inviting other companies to participate in the award procedure and without this being expressly permissible according to the law (§ 135 (1) GWB). The application must be filed within 30 calendar days after receipt of knowledge of the infringement or 30 calendar days after publication of the notice of the award in the Official Journal of the European Union or at the latest within six months after the conclusion of the contract (§ 135 (2) GWB).
  • There are no alternative penalties according to Dir 66/2007/EC under German Public Procurement Law.
  • Under certain conditions, a tenderer may be entitled to claim compensation from the contracting authority according to § 181 GWB or the general rules of German civil law.

11. To which extent can procurement contracts be amended after awarding?

  • Above EU thresholds:

Procurement contracts can be amended after awarding insofar as the modification is not considered to be substantial. § 132 GWB enumerates an exhaustive list of cases in which modifications are in conformity with public procurement law such as review clauses provided for in the initial procurement documents, additional services if the contractor cannot reasonably be changed, unforeseeable circumstances, replacement of contractor in case of succession, or low value of the modification (10 % supplies and services, 15 % works). The list follows closely the wording of the EU directives such as Art. 72 Dir 2014/24/EU.

  • Below EU thresholds:

The Regulations on the Award of Public Supply and Service Contracts below the EU thresholds adopt and modify the regime applicable above the EU thresholds. The threshold for a modification to be considered as low value is increased to 20 % with respect to supplies and services (§ 47 UVgO).

12. Is it mandatory or voluntary to use e-procurement or e-signatures?

  • Above EU thresholds:

Following a phase-in period, e-procurement became mandatory for all contracting authorities, except the defence and security sector, on 18 October 2018. Justified exceptions may apply. The contracting authority may demand the use of e-signatures or e-seals on a case-by-case basis.

  • Below EU thresholds:

The Regulations on the Award of Public Supply and Service Contracts below the EU thresholds provides for a phase-in period until 1 January 2020. The contracting authority may demand the use of e-signatures or e-seals on a case-by-case basis. Since 18 October 2018, the contracting authority has been permitted to rely solely on e-procurement for works contracts. Please note that the introduction of the regulations including e-procurement is subject to the competence of each federal state and may differ.

Authors

Dr. Sven Brockhoff
Rechtsanwalt | Fachanwalt für Vergaberecht (Certified lawyer for procurement law)
Dr. Rajiv Chandna
Rechtsanwalt | Fachanwalt für Vergaberecht (Certified lawyer for procurement law)
Matthias Kuß
Dr. Matthias Kuß
Rechtsanwalt, Notary Public | Fachanwalt für Verwaltungsrecht (Certified lawyer for administrative law)
Dr. Thomas Markpert
Rechtsanwalt
Peter Oriwol
Peter Oriwol
Lawyer
Christian Scherer-Leydecker
Dr. Christian Scherer-Leydecker
Rechtsanwalt | Fachanwalt für Vergaberecht (Certified lawyer for procurement law) | Fachanwalt für Verwaltungsrecht (Certified lawyer for administrative law)
Jakob Steiff
Dr. Jakob Steiff, LL.M. (Edinburgh)
Rechtsanwalt
Volkmar Wagner
Dr. Volkmar Wagner
Rechtsanwalt | Fachanwalt für Vergaberecht (Certified lawyer for procurement law) | Fachanwalt für Verwaltungsrecht (Certified lawyer for administrative law)
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