What is a Procurement Review Board?
The Procurement Review Board (Vergabekammer) is an independent quasi-judicial body established at both the federal and state levels in Germany to adjudicate disputes arising from public procurement procedures above the EU thresholds. The Vergabekammern are the first-instance review bodies in the German procurement legal protection system, providing specialized and expeditious resolution of procurement disputes.
Germany has one federal Vergabekammer (Vergabekammer des Bundes, located at the Federal Cartel Office in Bonn) and multiple state-level Vergabekammern. The federal Vergabekammer handles disputes relating to procurement by federal authorities, while state Vergabekammern handle disputes concerning procurement by state and municipal authorities. Each Vergabekammer is composed of a chairperson (typically a qualified lawyer) and two associate members, one of whom must have experience in procurement practice.
When a review application is filed, the Vergabekammer examines whether the contracting authority has complied with the applicable procurement rules. The proceedings are adversarial, with both the applicant and the contracting authority (and often the successful bidder as a third party) submitting their arguments and evidence. The Vergabekammer must generally decide within five weeks of receiving the application, ensuring rapid resolution. It can order a range of remedies, from requiring specific corrective actions to annulling the procurement procedure entirely.
Why It Matters for Bidders
The Vergabekammer system is the cornerstone of effective legal protection for bidders in public procurement. It provides a specialized forum where procurement disputes are decided by experts who understand the technical and legal complexities of public procurement. This expertise, combined with the fast decision timelines, makes the Vergabekammer system one of the most effective procurement review systems in Europe.
Bidders considering a review application should weigh the costs and benefits carefully. Filing fees can range from several hundred to several tens of thousands of euros, depending on the contract value. The losing party generally bears the costs, including the opponent's legal fees. However, for high-value contracts, the potential benefit of overturning an unlawful award decision far outweighs the costs of the review proceedings.
Legal Framework
The Vergabekammer system is established by Sections 155 to 170 GWB. The composition, competencies, and procedural rules are detailed in these provisions. The EU Remedies Directive 89/665/EEC, as amended by Directive 2007/66/EC, requires member states to establish effective and rapid review procedures. Decisions of the Vergabekammer can be appealed to the competent Higher Regional Court (OLG) under Section 171 GWB.