What does public procurement tribunal mean?
The public procurement tribunal (Vergabekammer) is a decision-making body set up by the authorities that rules on the lawfulness of award decisions by contracting authorities as part of the review procedure under procurement law. It is the first instance of the legal protection system in procurement law above the EU thresholds and is functionally independent, even though it is organizationally attached to a public authority.
In Germany, there are public procurement tribunals at federal and state level. The federal public procurement tribunals are part of the Federal Cartel Office (Bundeskartellamt) and are responsible for contracts awarded by federal authorities and federal legal entities under public law. For contracts awarded by state authorities, municipalities and other contracting authorities, the public procurement tribunals of the federal states are responsible. They are set up at the regional governments or state authorities.
The public procurement tribunal decides with a chair and two associate members, one of whom is an honorary member. The procedure resembles a court procedure but is not a court case in the strict sense. The tribunal can hold oral hearings, take evidence and order interim measures. Its decision is issued as a ruling (Beschluss).
Relevance for bidders
For bidders, the public procurement tribunal is the central point of contact when they want to assert violations of procurement law above the EU thresholds. Access to the tribunal requires that the bidder first raised a complaint (Rüge) about the violation with the contracting authority. Only if the complaint is unsuccessful can an application for review be filed with the tribunal.
Bidders should keep in mind that filing an application for review triggers an automatic ban on awarding the contract. This means the contracting authority may not award the contract as long as the tribunal has not decided. The procedure usually takes five weeks but can be extended. The losing party bears the costs of the procedure. Bidders should therefore weigh the chances of success carefully before starting a review procedure.
Legal framework
The public procurement tribunals are governed by Sections 155 to 163 GWB (German Act against Restraints of Competition). Section 157 GWB governs how the tribunals are set up and staffed. The procedure before the tribunal is set out in Sections 163 to 170 GWB. The procedural fees follow Section 182 GWB and are based on the contract value. An immediate appeal against decisions of the public procurement tribunal can be filed with the competent Higher Regional Court (Section 171 GWB).