Procurement control

• Review applications (applications for annulment): without delay, no later than six weeks after receipt of the application
• Applications for the issuing of interim injunctions: without delay, but at the latest within ten days of receipt of the application (within fifteen days if the application needs to be improved)
• Applications for determination: without delay, no later than six weeks after receipt of the application

Those entitled to apply are anyone

• who claims an interest in the conclusion of a contract (which is subject to the Bundesvergabegesetz 2018), and
• who has suffered or is in danger of suffering damage as a result of the alleged illegality.

The application for review has no suspensive effect for the procurement procedure concerned.

A tenderer must, for example, present a defect identified in the call for tenders document as early as possible. If he/she waits until it is established that he/she is not to receive the contract (and the deadline for the application for review in relation to the call for tenders has expired in the meantime), he/she can no longer invoke the error in the call for tenders document.

The deadlines within which separately contestable decisions have to be contested depend on the way in which the decision is brought to the attention of the tenderer. It is

• ten days if the decision is transmitted or provided electronically and the decision is announced and
• 15 days if it is communicated by post or in another suitable manner

and begins with the transmission or provision of the decision or the first availability of the announcement.

There are also special deadlines. In the case of a direct award, the deadline is ten days from the (possible) knowledge of the separately contestable decision.

Applications for review of the call for tenders (with the exception of the notice in the case of direct awards with prior notice) can also be submitted no later than seven days before expiry of the tender period, the period for submission of competition work or the participation application period, if this extends the application period.

An application for review must in any case contain:

• designation of the procurement procedure and the contested separately contestable decision,
• designation of the contracting entity, the applicant and possibly the awarding authority and their electronic address
• presentation of the relevant facts and the interest in the conclusion of the contract; if the award decision is opposed, the tenderer envisaged for the award must be designated,
• information about the applicant’s alleged impending damage or damage already suffered
• objections (designation of the rights which the applicant considers to have been violated) and grounds (on which the allegation of illegality is based)
• application for annulment of the contested separately contestable decision
• information for the assessment of timeliness

Fees

For interim injunctions, the fee is half the fee for the review application. There are also other special regulations according to which the above fee rates are increased or reduced.

Reimbursement of fees

An applicant who is even only partially successful before the Federal Administrative Court is entitled to reimbursement of the fees by the contracting entity (even if deprived of a cause for action during the pending proceedings).

In the case of an interim injunction, the entitlement to reimbursement of fees only exists if

• the application for review (main application) is granted or if the applicant is deprived of a cause for action during the pending proceedings and
• the application for the issuing of an interim injunction was granted or would have had to be granted if the applicant is deprived of a cause for action or the application for the issuing of an interim injunction was rejected only on the basis of a balance of interests or would have had to be rejected if the applicant is deprived of a cause for action.

The Federal Administrative Court has to decide on the reimbursement of fees no later than three weeks from the point at which it is established that there is entitlement to reimbursement of fees.