Section 97 GWB (German Act against Restraints of Competition) describes how a procurement procedure must generally run. Under subsection 6, companies have a right to have the procurement rules observed. That makes the provision a starting point for checking possible procedural errors. To check whether Part 4 applies at all, read the articles on contracting authority status and thresholds. Section 97 GWB
Legal and source status: September 5, 2026. For the broader context, see the guide to GWB Part 4.
What do the principles mean for bid work?
The starting point is competition and transparent procedures. Added to this are cost efficiency and proportionality, as well as the general equal treatment of participants. Quality, innovation, social and environmental aspects are taken into account as the law provides. Communication is generally electronic. Section 97 subsections 1 to 5 GWB
Turn these principles into concrete checks:
| Check question | What you record in the bid file |
|---|---|
| Are the requirements and the evaluation clear? | References, contradictions and missing information |
| Does a requirement seem disproportionate? | Link to the contract and the concrete hurdle to taking part |
| Do participants have different levels of information? | Published answers, changes and dates |
| Can you handle electronic submission? | Access, file formats, powers of attorney and an internal test date |
This working list is not yet a legal assessment. It helps your team describe conspicuous points objectively before they turn into a bidder question or a complaint (Rüge).
SMEs and lots: Read Section 97a as well
Section 97 subsection 4 requires that the interests of small and medium-sized enterprises be given priority consideration. The concrete lot rule is now in Section 97a. Services are generally divided by quantity into partial lots and by type or field into trade lots. Economic or technical reasons can require combining them. Section 97a subsections 1 and 2 GWB
In addition, Section 97a subsection 3 contains an exception on grounds of time for certain infrastructure projects from twice the relevant threshold. It covers the financing or transport infrastructure cases named there. General deadline pressure is therefore not enough to describe this statutory exception. Section 97a subsections 3 and 4 GWB
Fictional example: An IT service provider can take on support but cannot supply hardware. The municipality tenders both services together. The team first documents which separable service it could offer and which reason for combining them is apparent. The mere size of the overall contract does not yet prove a procurement violation. For a possible partnership, see the guide to subcontractors.
What to do about a possible violation?
Secure the documents and note when you spotted the issue. General dissatisfaction with the tender is not enough for a sound legal review. Name the concrete requirement and its effect on your participation. Legal protection is subject to the conditions and different deadlines of Section 160. A normal question for clarification should not be treated as a deadline-preserving complaint without checking. Section 160 GWB
Frequently asked questions
Which principles are in Section 97 GWB?
Section 97 names in particular competition, transparency, cost efficiency, proportionality and equal treatment. It adds rules on quality, innovation, social and environmental aspects, on SMEs and on electronic communication.
Is the division into lots still in Section 97 subsection 4 GWB?
In the current version, that subsection contains the SME principle. The concrete duty to award partial and trade lots, along with the exceptions, is in Section 97a GWB.
Check disputed requirements early with the notes on complaints and review proceedings.