What does appeal procedure mean?
In procurement law, the appeal procedure is the court procedure that follows a decision by the public procurement tribunal (Vergabekammer). If a party does not agree with the tribunal's decision, it can file an immediate appeal (sofortige Beschwerde) with the competent Higher Regional Court (Oberlandesgericht, OLG). There, the procurement senate (Vergabesenat) decides on the appeal. This two-tier system of public procurement tribunal and Higher Regional Court forms the legal protection system in procurement law above the EU thresholds.
The immediate appeal must be filed within two weeks after the tribunal's decision is served. It must be filed with the competent Higher Regional Court and has no suspensive effect. This means the tribunal's decision generally remains enforceable, unless the Higher Regional Court orders suspensive effect for the appeal on request. The procurement senate can set aside or change the tribunal's decision or dismiss the appeal.
For legal questions of particular importance, the procurement senate can allow a further appeal on points of law (Rechtsbeschwerde) to the Federal Court of Justice (BGH). This happens especially when the legal question is of fundamental importance or to ensure consistent case law. In practice, however, appeals on points of law to the Federal Court of Justice are rare in procurement law.
Relevance for bidders
For bidders, the appeal procedure is the last instance of legal protection in procurement law. It allows the tribunal's decision to be reviewed by an independent court. The decision to file an immediate appeal should be weighed carefully, however, because the procedure involves considerable costs, including court fees and lawyers' fees.
Bidders must strictly meet the short appeal deadline of two weeks. It is therefore a good idea to assess the chances of success of a possible appeal while the tribunal procedure is still running. Hiring a lawyer who specializes in procurement law is generally mandatory for the appeal before the Higher Regional Court, because representation by a lawyer is required before the Higher Regional Courts.
Legal framework
The appeal procedure is governed by Sections 171 to 178 GWB (German Act against Restraints of Competition). The immediate appeal is set out in Section 171 GWB. The jurisdiction of the procurement senates follows from Section 171(3) GWB. The appeal on points of law to the Federal Court of Justice is governed by Section 179 GWB. The EU Remedies Directives 89/665/EEC and 92/13/EEC form the European legal framework and oblige member states to provide effective and rapid review procedures.