Originally, in Germany, public procurement law did not contain remedies or an enforcement mechanism. Only in 2001 the German legislator introduced a legal protection system in order to comply with the European Directives calling for an effective remedies system. According to the legal protection system a bidder may file a petition for judicial review (Nachprüfungsantrag) claiming a violation of the provisions on public procurement procedures. The aim of the judicial review procedure is to remediate any violations of the procurement procedure laws during the procedure, i.e. before the award of the contract. In consequence, as a general rule, once a contract has been awarded, legal protection pursuant to public procurement law is not available anymore. Post award a violation of procedural provisions can only be reviewed in exceptional cases. The most common one is an unlawful direct award. As mentioned above (see under 7b), a contract which has been directly awarded in violation of public procurement law provisions can be challenged as void (ex tunc).

Against that background, in order to guarantee an effective remedies system, the contracting authorities are obliged to notify via electronic communication all participants of a procurement procedure on their intention to award the contract to a competitor at least 10 days prior to the award. This shall enable bidders to file a petition for judicial review before the award. Contracts which are awarded without this so-called preliminary information (Vorabinformation) are void. However, such voidance has to be declared by the review bodies (please refer to c below) upon a petition of a frustrated bidder.

In case of an infringement of procurement rules bidders can claim damages according to general civil law provisions. This may include not only reimbursement of the costs for preparation of the bid and participation in the procurement procedure but also consequential damages caused by the unlawful award. In addition, procurement provisions also provide a specific right to bring forward an action for damages against a competing bidder who abused its right of judicial review by a claim obviously unjustified or based on false statements or on a misrepresentation of facts. However, it has to be noted that any claims for damages are very rare and almost never successful as the claimant can almost never prove for certain that without the violation he would have received the award or that the claim of the competitor was actually obviously unjustified.

The procurement law legal protection system detailed above only applies to procurement procedures for contracts equalling or exceeding the European threshold values (see 1a above). In this case it precedes any other remedies potentially available. In contrast, in case of contracts below the applicable threshold values, bidders and applicants have no standing for filing a petition for judicial review pursuant to public procurement law provisions. However, German higher administrative courts have ruled that below the thresholds unsuccessful bidders have access to civil or administrative courts to review the legality of the contracting authority's decision. This also includes the assertion of a claim for damages.

In addition, there are remedies available outside German procurement regulations under trade agreements, and under contract law.

Judicial review according to public procurement law in Germany is guaranteed on a two-level basis: First instance review is granted by Judicial Review Chambers (Vergabekammern) which are part of the administrative authority. Judicial Review Chambers exist on a federal and on a state level. Appeals against decisions of the Judicial Review Chambers are dealt with by specialized Review Senates at the Higher Regional Courts (Vergabesenate der Oberlandesgerichte).

Review by Judicial Review Chamber

Petitions for judicial review of federal procurement procedures have to be filed with the Federal Judicial Review Chambers which are constituted within the Federal Cartel Office (Bundeskartellamt). Procurement procedures initiated by state authorities are reviewed by the Judicial Review Chambers of the respective state. The Judicial Review Chambers work and decide independently.

Judicial Review Chambers may review the award procedure with regard to all aspects of public procurement law. Accordingly, Judicial Review Chambers may grant a wide range of remedies such as execution of lawful measures and declaration of the unlawfulness of the award. Judicial Review Chambers are obligated to rule within a period of five weeks and give reasons for its findings in writing, although in exceptional cases this period might be extended.

Review by Review Senates

The final decision of a Judicial Review Chamber which constitutes an administrative act can be challenged with an immediate appeal (sofortige Beschwerde) to the Review Senate of the Higher Regional Courts. An immediate appeal must include a statement of the grounds for appeal and must be filed within two weeks after the Judicial Review Chamber has served its decision to the respective party.

The Review Senate acting as court of appeal can either replace the Judicial Review Chamber's decision by its own or annul the decision of the Judicial Review Chamber and recommit the contracting authority to remedy any procurement law violation under the condition to consider the reasons given by the Review Senate.

For obtaining legal protection, the German legislator has stipulated certain. If a bidder recognizes an infringement of procurement law provisions during the procurement procedure, he must file an objection vis-à-vis the contracting authority before filing a petition for judicial review. This objection with the contracting authority has to be filed within:

• 10 days since the bidder gained knowledge of the alleged violation; or
• the time limit set for bids in the call for bids if the alleged violations are noticeable in this call; or
• the time limit set for bids in the procurement specifications if the alleged violations are noticed only after the specifications have been issued.

Following the objection, the petition for judicial review has to be filed within 15 days after the bidder has received the dismissal of his objection by the contracting authority.

As mentioned above, it is also possible to challenge an award as void from the outset even after the conclusion of the contract. Such a challenge has to be filed with a Judicial Review Chamber before the expiry of at least 30 calendar days with effect from the day following the date on which:

• the contracting authority published a contract award notice in the Supplement of the Official Journal of the European Union; or
• the contracting authority informed the bidders and candidates concerned on the conclusion of the contract.

In any case, the petition for judicial review regarding the voidance of a contract has to be filed before the expiry of a period of at least six months with effect from the day following the date of the conclusion of the contract.

As mentioned above (please refer to c above), an immediate appeal against a decision of a Judicial Review Chamber must be filed within two weeks after the Judicial Review Chamber has served its decision to the respective party.

Besides filing an objection with the contracting authority as detailed above, a bidder only has standing to file a petition for review if he can claim 1) an interest to receive the award, 2) a violation of his individual rights resulting from public procurement law provisions and 3) demonstrate that as a consequence of such violation he suffered damages.

According to paragraph 2 of section 160 GWB, a review proceeding can be started if a bidder claims that its rights under GWB were violated by non-compliance with the provisions governing the awarding of public contracts. Inadmissible direct awards are the most drastic violations of procedural rules and are therefor an admissible ground for initiating review proceedings.

A petition for judicial review filed with a Judicial Review Chamber suspends the award procedure, i.e. award of the contract is banned as soon as the petition for judicial review has been served on the contracting authority and at least until two weeks after the Review Chamber has issued its decision. A contract awarded despite of the suspension is void. Contracting authorities may apply for a lift of the suspension at any time during the procedure claiming that the general public interest requires premature award of the contract. However, the Review Chambers does not grant such a lift very often.

Filing of an appeal extends the suspension of the procurement procedure for at least another two weeks. In addition, the applicant can apply for a further extension of the suspension which – as a general rule – happens together with the appeal and is generally granted at least until the oral hearings has taken place.

With regard to the suspension of the award procedure the contracting authority may apply for an immediate lift and the court may render preliminary decisions on this issue (Vorabentscheidung über den Zuschlag). In its assessment as to whether the award shall be allowed prematurely, the Review Senate shall take account of the interests of the general public in the contracting entity carrying out its tasks efficiently. In its decision, the court shall also consider the prospects of success of the immediate appeal, the overall prospects of the applicant of winning the award in the award procedure and the interest of the general public in the quick conclusion of the award procedure.

Under paragraph 2 of section 168 GWB, once a contract has been awarded, the award cannot be reversed even if procurement rules have been violated. By way of exception, contracts awarded directly without meeting the criteria for such direct awards are void and can be subject to the judicial review.

Under paragraph 1 of section 168 GWB the Judicial Review Chamber can undertake "adequate measures" to eliminate the violation of rights in the affected bid procedure and prevent the infliction of damage if the review proceeding is successful. In the legal practice of the Awards Senates and Judicial Review Chambers "adequate measures" within the meaning of paragraph 1 of section 168 GWB include:

• the prohibition of the award of the contract by continuing the current procedure;
• the obligation for the contracting authority to continue the current procurement procedure or to start a new procurement procedure in accordance with the Judicial Review Chamber's decision if the contracting authority is still willing to undertake a public procurement; or
• the obligation for the contracting authority to suspend the procurement procedure if the infringement cannot be remedied. In this case, the contracting authority may publish a new call for bid in accordance with public procurement law.

In the rare and exceptional cases when the award of the contract to a certain bidder is the only rightful option due to the special circumstances of the individual case (e.g. if a bidder solely owns a required intellectual property right such as a patent or a utility model for the procured good) and the contracting authority is still willing to undertake the public procurement, the Judicial Review Chamber may directly award the contract to this bidder.

As mentioned above, a contract award cannot be reversed by judicial review proceedings. However, if the Judicial Review Chamber has found that the contract has been unlawfully awarded without a prior publication of a call for bids (direct award), the contract can to be declared void.

First instance judicial proceedings for review take 5 weeks. However, the Judicial Review Chamber can extend the time due to the factual or legal complexity of the case in question.

For second instance judicial proceedings, the procurement legislation does not set a specific time frame in which a decision on an immediate appeal has to be rendered. In practice a second instance proceeding usually takes between 3-6 months.

Yes, in order to enable frustrated bidders to seek legal protection within the applicable time limits, bidders must be notified before the award (Vorabinformation) "without undue delay". The procurement contract can only be concluded 15 days after the notification has been issued. In case of electronic transmission of the notification the contract may be concluded 10 days after the notification has been issued.

Yes. According to statistics published by the Federal Ministry for Economic Affairs and Energy, in 2015 864 review proceedings have been conducted by the Judicial review Chambers, of which only 134 were successful. 159 review proceedings have been conducted by the Review senates of the Higher Regional Courts, of which only 34 were successful.

No. Although procurement law grants a specific claim for damages, it is uncommon for frustrated bidders to file such a damage claim (please refer to b above). The same is true for damage claims in accordance with the German Civil Code.

The number of decisions regarding public procurement issues is vast. National review entities alone issue about 1.000 decisions annually. The following recent decisions should be highlighted:

• European Court of Justice (ECJ), Falk Pharma dated 2 June 2016 (Case C-410/14)

The ECJ's decision concerns the question if procurement law applies to the so called "open-house" contract scheme. Under this scheme a contracting authority procures goods or services from any economic operator who undertakes to provide the goods or services concerned in accordance with predetermined conditions. Instead of choosing one or a limited number of bids for award the contracting authority commits itself to enter into an agreement with every company that is willing to meet the predetermined conditions. The ECJ ruled that such a contract scheme shall not constitute a public contract within the meaning of Directive 2004/18 so that procurement law does not apply to this contract scheme. The decisive criterion for the ECJ was that the contracting authority does not make the essential choice between the economic operators from whom it will acquire the works, supplies or services that are subject matter of that contract but allows everyone to accede to that contract scheme throughout its validity at any time according to equal conditions.

• Federal Supreme Court (BGH), decision dated 31 January 2017 (Case X ZB 10/16)

The BGH's decision concerns the question if a bidder has a right to require a price review of the prices offered by another bidder. The court ruled that as a general rule a bidder may require a price review of the concurrent bid if it seems unfairly low.

• Higher Regional Court Duesseldorf (OLG Düsseldorf), decision dated 17 February 2016 (Case VII-Verg 41/15)

The OLG Duesseldorf's decision concerns the question of a potential distortion of competition due to the fact that the members of bidder consortium are active in the same market. The court allowed the cooperation of such bidders in a consortium if

• the companies could not have successfully participate in the procurement procedure individually because they are not able to submit a bid on their own due to the lack of capabilities required for contract performance; or
• the members of the consortium are otherwise engaged in a way that prevents them to make use of their capacities for the contract at hand; or
• only the cooperation of the companies enables them to submit a bid with the chance of success, i.e. they would not have been able to submit a bid with a chance of receiving the award on their own.