What does review procedure mean?
The review procedure is the central legal remedy in public procurement above the EU thresholds. It lets bidders and applicants have violations of procurement rules by the contracting authority reviewed. The public procurement tribunals (Vergabekammern) of the federal government and the federal states are responsible for conducting it, and they decide as independent bodies.
A review procedure starts with an application for review, which an affected company files with the competent public procurement tribunal. The precondition is that the applicant first raised a complaint (Rüge) about the violation with the contracting authority and that this complaint was unsuccessful. The complaint must be raised without delay after the violation is recognized. If a recognizable violation is not raised in time, the application for review is inadmissible.
The procedure before the public procurement tribunal is not a court case in the strict sense, but it follows a court-like process. The tribunal can set aside the award decision, send the procurement procedure back to an earlier stage or instruct the contracting authority to take or refrain from certain actions. Once the application for review is received, an automatic ban on awarding the contract takes effect. This prevents the contracting authority from awarding the contract until the tribunal has decided.
Relevance for bidders
For bidders, the review procedure is an important tool for defending themselves against unlawful award decisions. Especially when a bidder receives a rejection and has doubts about the lawfulness of the procedure, the review procedure offers a way to obtain an independent review.
However, bidders should keep in mind that starting a review procedure involves costs and carries a certain litigation risk. The procedural fees depend on the contract value and can amount to several thousand euros. In addition, meeting the deadlines for the complaint and the application is mandatory, because otherwise the application is rejected as inadmissible from the start.
Legal framework
The review procedure is governed by Sections 155 to 184 GWB (German Act against Restraints of Competition). The jurisdiction of the public procurement tribunals follows from Section 156 GWB. The duty to raise a complaint is set out in Section 160(3) GWB. Under Section 171 GWB, an immediate appeal against decisions of the public procurement tribunal can be filed with the competent Higher Regional Court (procurement senate). Below the thresholds, no review procedure is available. There, bidders can only take action in the civil courts.