What is a Legal Remedy Procedure?
The legal remedy procedure (Rechtsmittelverfahren) in German procurement law refers to the comprehensive system of legal avenues available to aggrieved bidders and candidates to challenge procurement decisions. The system operates on two levels: the primary review before the Procurement Review Board (Vergabekammer) and the subsequent appeal (sofortige Beschwerde) before the competent Higher Regional Court (Oberlandesgericht, OLG).
At the first level, the Vergabekammer conducts an independent review of the procurement procedure, examining whether the contracting authority has complied with all applicable procurement rules. The Vergabekammer's decision is binding and can order specific remedies, including requiring the contracting authority to repeat procedural steps, modify evaluation criteria, or in extreme cases, restart the entire procedure. The proceedings are designed to be expeditious, with the Vergabekammer typically required to decide within five weeks.
If either party is dissatisfied with the Vergabekammer's decision, they may file an immediate appeal (sofortige Beschwerde) to the competent OLG within two weeks. The OLG conducts a full review of both the factual and legal aspects of the case and may confirm, modify, or overturn the Vergabekammer's decision. In exceptional cases involving questions of fundamental legal importance, a further appeal to the Federal Court of Justice (Bundesgerichtshof) may be possible.
Why It Matters for Bidders
Understanding the legal remedy system is essential for bidders who wish to protect their rights effectively. The availability of a specialized, two-tier review system is a significant advantage of above-threshold procurement, as it provides rapid and expert adjudication of procurement disputes. Below the EU thresholds, the legal protection for bidders is considerably weaker, with no access to the Vergabekammer system.
Bidders should be aware that the legal remedy system is subject to strict procedural requirements, particularly regarding deadlines for raising complaints and filing review applications. Failure to comply with these deadlines results in the loss of legal protection, regardless of the merits of the case. Companies should establish relationships with specialized procurement law firms to ensure they can respond quickly when procurement irregularities are identified.
Legal Framework
The legal remedy system for public procurement is governed by Sections 155 to 184 GWB. The EU Remedies Directives 89/665/EEC and 92/13/EEC, as amended by Directive 2007/66/EC, establish the European framework. The procedural rules for the Vergabekammer are set out in Sections 163 to 170 GWB, while the appeal procedure is governed by Sections 171 to 175 GWB. Court fees are regulated by the GWB and the German Court Costs Act (GKG).