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In the world of public procurement, bidders in Germany are subject to specific legal obligations and best practices, as outlined in the Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB). These regulations, particularly Section 160 GWB, establish the rules regarding protest obligations.
### Legal Implications for Protest Obligations
One of the key provisions is the Immediate Complaint Requirement (§ 160 (3) GWB), which states that if a bidder becomes aware of a violation of public procurement rules during the awarding procedure, they must immediately raise a complaint with the contracting authority without undue delay. Failure to do so can render any subsequent protest application inadmissible.
If a violation is apparent already from the tender notice, the bidder must notify the contracting authority by the end of the tender submission period. Missing this deadline will also make complaints inadmissible later on. Complaints do not require a particular form but should be made in writing—via email, fax, or letter—and must describe the alleged violation and the remedial action sought to be recognizable to the contracting entity.
There is a practical 10-day limit to initiate review proceedings before procurement tribunals after becoming aware of the violation. However, the conformity with European provisions is still debated. If the contracting authority refuses to remedy the complaint, the bidder has 15 calendar days after notification of such refusal to file an application with the public procurement tribunal; if this is not done, the application is unlawful.
### Best Practices for Bidders
For bidders, it is essential to monitor the awarding procedure diligently to detect any procedural or substantive violations early enough to fulfil the immediate complaint obligation. Any suspicion of violation should be raised clearly and promptly in writing to the contracting authority, detailing the facts and the remedy sought.
If the contracting authority rejects the complaint, bidders should act promptly to escalate the matter to the procurement tribunal within the statutory deadlines. A well-founded complaint or appeal can suspend the awarding procedure, preventing the contract award until resolution, which can be critical to protect bidders' interests. Given the complexity and strict deadlines, bidders should involve specialized legal counsel early in the protest process to navigate procedural and substantive requirements properly.
### Summary
By following these requirements and best practices, bidders in Germany can effectively assert their rights and challenge unlawful procurement actions in a timely and procedurally correct manner, aligning with the transparent and competitive framework of German and EU procurement law.
References: [1] Kins, Christoph. "Public Procurement Law in Germany." In Encyclopedia of Public International Law, edited by Rudiger Wolfrum, 2012. [2] European Union, "Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC." Official Journal of the European Union, 2014. [3] German Federal Ministry of Economics and Technology, "Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, GWB)." Bundesgesetzblatt, 2005.
Bidders in the German finance industry, as well as in other businesses and the procurement industry, must adhere to the immediate complaint requirement outlined in Section 160 (3) GWB, which mandates they raise an issue about a violation of public procurement rules during the awarding process immediately and in writing. Failure to do so may render any subsequent protest applications inadmissible.
To effectively assert their rights and challenge unlawful procurement actions, it is crucial for bidders to monitor the awarding procedure diligently, involving specialized legal counsel early in the protest process to navigate procedural and substantive requirements correctly and ensure that any suspensions of the awarding procedure, when required, protect their interests adequately.
