What does advance award notice mean?
The advance award notice, also known as the information letter under Section 134 GWB (German Act against Restraints of Competition) or informally as the "bidder information" (Bieterinformation), is a statutory notice that the contracting authority must send to all unsuccessful bidders above the EU thresholds before it awards the contract. It informs the bidder that its bid is not intended to win the contract and states the reasons why it was not chosen.
The advance award notice must contain certain minimum content: the name of the company that is to receive the contract, the reasons why the bidder's own bid was not chosen and the earliest possible date of the award. For bids excluded on formal grounds, the contracting authority must set out the reasons for exclusion. If the bid was evaluated on its content, the authority must name the characteristics and advantages of the successful bid.
Sending the advance award notice starts the standstill period, during which the contract may not be awarded. This waiting period is meant to give bidders the opportunity to examine the award decision and, if necessary, start a review procedure. An award made in violation of the duty to send the advance award notice can be declared void on application.
Relevance for bidders
The advance award notice is of central importance for bidders, because it is the gateway to legal protection under procurement law. Only through the advance award notice does the bidder learn that its bid was unsuccessful, and it receives the information needed to assess whether the award decision is lawful.
Bidders should analyze the advance award notice carefully right after receiving it. The stated reasons for rejection must be checked to see whether they are objectively understandable and permissible under procurement law. If there are doubts about lawfulness, a complaint (Rüge) must first be raised with the contracting authority. This should happen without delay, because the standstill period is only ten or 15 calendar days. If the reasons given are insufficient, the bidder has the right to request further information from the contracting authority.
Legal framework
The duty to send an advance award notice is governed by Section 134 GWB. Under Section 134(2) GWB, the standstill period is at least ten calendar days for electronic transmission and 15 calendar days for other transmission. Under Section 135(1) No. 1 GWB, a violation of the duty to inform can make the concluded contract void. The duty to send an advance award notice goes back to Article 2a of EU Remedies Directive 2007/66/EC. Below the thresholds, there is no statutory duty to send an advance award notice, although some procurement rules provide for voluntary information obligations.