What is the GWB?
The GWB (Gesetz gegen Wettbewerbsbeschraenkungen), also known as the Act Against Restraints of Competition or German Competition Act, is the central piece of legislation governing competition law in Germany. For public procurement purposes, Part 4 of the GWB (Sections 97 to 184) is of paramount importance, as it contains the foundational principles and rules for all public procurement above the EU thresholds. Part 4 was comprehensively reformed in 2016 to transpose the EU Procurement Directives 2014/24/EU, 2014/25/EU, and 2014/23/EU into German law.
Part 4 of the GWB establishes the fundamental procurement principles: competition, transparency, equal treatment, non-discrimination, and proportionality. It defines the categories of contracting authorities, the types of contracts subject to procurement rules, the applicable procedures, and the legal remedies available to aggrieved bidders. The GWB thus serves as the overarching legislative framework from which more detailed regulations, specifically the VgV, SektVO, and KonzVgV, derive their authority.
A distinctive feature of the German procurement system is that above-threshold procurement is embedded within competition law rather than being governed by a standalone procurement statute. This reflects the understanding that public procurement rules serve competition policy objectives by ensuring that public contracts are awarded through fair and open competitive processes, preventing market distortions caused by preferential treatment or corruption.
Why It Matters for Bidders
The GWB is the most important law for bidders participating in above-threshold procurement in Germany. It establishes their fundamental rights, including the right to transparent and non-discriminatory treatment and, critically, the right to seek legal review of procurement decisions that violate these principles. The review procedure before the Vergabekammer, as governed by Sections 155 to 184 GWB, gives bidders an effective legal remedy that does not exist in the same form below the thresholds.
Bidders should understand the key provisions of GWB Part 4, particularly the exclusion grounds (Sections 123 and 124), the principles governing award criteria (Section 127), and the rules on review procedures (Sections 155 ff.). Knowledge of these provisions is essential for both preparing compliant bids and defending one's rights when procurement rules are violated.
Legal Framework
The GWB is a federal statute adopted by the German Bundestag. Part 4 was last comprehensively amended by the Vergaberechtsmodernisierungsgesetz in 2016. It is supplemented by the VgV, SektVO, and KonzVgV as delegated regulations. At the EU level, the GWB Part 4 implements Directives 2014/24/EU, 2014/25/EU, and 2014/23/EU.