The awarding of public contracts is based on the volume of orders (without VAT), the so-called EU thresholds. Further up the European competition regulations, which are written (in Germany) in the Act against competition restrictions (GWB). Under the EU thresholds, the Federal States regulate the award of public contracts in their respective budgetary law.
The threshold values are (at the time of the creation of this page, please ask for current values if necessary):
- 5,000,000 EUR for construction contracts
- 209,000 EUR for general delivery and service contracts
- 130,000 EUR for supply and service contracts from the highest federal authorities.
Contracts above the EU thresholds must be issued throughout the European public tendering process, with specific formal requirements and deadlines.
Legal protection in the awarding of public contracts
There is a direct legal protection for the process of awarding of public contracts. In some cases, the unsuccessful tenderer may be asked to review the procedure at the so-called awarding bodies. The awarding authority shall award the contract to the contracting authority. The Procurement Chamber has two weeks to decide which party would carry out the contract, and no notification can be issued before this deadline. An already assigned order can not be revoked, even if the Procurement Chamber decides so. Once the notification has been issued, the contracting authority becomes responsible for the achievement of the project. Please consider that the assignment is legally binding for both parties. The unsuccessful bidder can sue for compensation for damages in relation to the infringement of awarding contract regulations. The fees for this procedure at the Procurement Chamber amount of 2500 EUR, depending on the economic importance of the matters and the associated expense.
An appeal proceeding against the decision of the Procurement Chamber may be lodged at the Higher Regional Court, „Oberlandesgericht“ in Germany, within two weeks from the notification of assignment. According to § 97 para. 7 GWB, the Higher Regional Court is the only judicial body entitled to rule on such claims. An immediate complaint will hinder the official issuance of the award.
Except for the EU-threshold values, there is no specific verification proceeding. Legal protection is governed by the general regulations of Civil Law. The court of jurisdiction is generally responsible for every legal action regarding this topic. Before awarding the contract, an attempt to awarding the contract can be made to ban the contracting authority by way of an interim injunction.
The entitlement to issue such a complaint may result from an infringement of the principle of equal treatment. If the contract has already been awarded, the successful tenderer shall only be entitled to claim compensation for his damage. Compensation includes the expenses incurred by the futile efforts made for the orders. For further clarifications on this matters, please make sure to contact us. Our team of experts will be glad to help you.
If the contracting entity has infringed the rules on the protection of the company and the company had a real chance of winning the contract, the concerned party has the right to claim compensation for the cost of preparing the tender and taking part to the awarding procedure. In some cases, the loss of profit can also be claimed as damages.
Publication of calls for tenders
There is not a complete list of public contracts. Notices of invitations to tender are, however, regularly available on the European platform TED, the municipal offices of the municipalities. Here you can also find the relevant procurement and price regulations as well as information on the awarding associations and further links.