What is a Review Procedure?
A review procedure (Nachpruefungsverfahren) is the formal legal process available to bidders and candidates who believe that a contracting authority has violated procurement rules during a procurement procedure above the EU thresholds. The review is conducted by the competent Procurement Review Board (Vergabekammer), an independent quasi-judicial body established at the federal and state levels specifically to adjudicate procurement disputes.
The review procedure is initiated by a written application from the aggrieved bidder, which must demonstrate that the applicant has an interest in the contract, that a specific procurement rule has been violated, and that the violation has caused or threatens to cause damage to the applicant. Before filing the application, the bidder must have raised the alleged violation with the contracting authority (Ruege) without undue delay and given the authority an opportunity to remedy the situation.
Once a review application is filed, the procurement procedure is automatically suspended. The contracting authority cannot award the contract until the review has been resolved, unless the Vergabekammer grants an exception allowing the procedure to continue. The Vergabekammer examines the case on its merits, typically within five weeks, and can order a range of remedies including requiring the contracting authority to repeat specific procedural steps, annulling procurement decisions, or in some cases declaring the entire procedure void.
Why It Matters for Bidders
The review procedure is the most powerful legal tool available to bidders for protecting their rights in public procurement. It provides rapid, specialized adjudication of procurement disputes by experts in procurement law, often resulting in binding decisions within weeks rather than the months or years typical of ordinary court proceedings.
However, filing a review application involves strategic considerations. The application fee can be substantial (typically several thousand euros), and the losing party generally bears the costs of the proceedings. Bidders should carefully assess the legal merits of their case, the likelihood of success, and the commercial value of the contract before initiating a review. Engaging specialized procurement law counsel is strongly recommended.
Legal Framework
The review procedure is governed by Sections 155 to 184 GWB. The admissibility requirements, including the obligation to raise complaints promptly, are set out in Section 160 GWB. The automatic suspension of the procurement procedure is established in Section 169 GWB. The EU Remedies Directive 89/665/EEC provides the European framework. Decisions of the Vergabekammer can be appealed to the Higher Regional Court (Oberlandesgericht) under Section 171 GWB.