Procurement Law

Public procurement law in Germany is still divided into two parts. Above certain EU thresholds, which are reviewed every two years by the EU Commission and adjusted if necessary, the so-called cartel procurement law applies, based on the implementation of European directives. It comprises the fourth part of the Act against Restraints of Competition (Sections 97 et seq. GWB) and the regulations issued on the basis of the GWB, currently the Regulation on the Award of Public Contracts, the sectoral Regulation, the Regulation on the Award of Public Contracts Defense and Security, the Regulation on the Concession Award of Public Contracts and the Regulation on the Statistics Award of Public Contracts as well as concerning construction services the respective relevant section of VOB/A. Below the aforementioned EU thresholds, the so-called budget procurement law, which is anchored in federal and state budgetary regulations or the local budget law, applies in each case read in conjunction with Section 1 of the VOB/A concerning construction services as well as supplies and services of the UVgO or with Section 1 of the VOL/A, in case the UVgO has not entered yet into force.

The aforementioned procurement regulations are supplemented by state regulations, in particular state procurement laws. Furthermore, in the case of a so-called single market relevance of the contract to be awarded, public contracting authorities are also bound by the basic principles of primary European Community law, in particular the principles of transparency, proportionality and equal treatment pursuant to Section 99 (1) to (3) GWB.

Furthermore, not only clients under Section 98 et seq. GWB, which may include legal entities under private law under certain conditions, and contractors bound by public budget law, must comply with public procurement law in the above sense, but also recipients of grants / subsidies which are regularly bound to procurement regulations by the grant decision and its general auxiliary conditions when using the subsidies. In the event of award infringements, the recovery of subsidies threatens.

In addition, the cartel procurement law is essentially characterized by the case law of the European Court of Justice as well as nationally by the public procurement division and public procurement tribunals.

SCHRADE & PARTNER supports you in solving your public procurement law problems and advises you in all aforementioned areas of public procurement law. One thematic priority is the provision of legal advice in the service sector, in particular in the health-care sector and in the founding and commissioning of service companies.

SCHRADE & PARTNER advises both public contracting authorities and candidates / tenderers as well as grantees. The consultation includes the following activities:

  • conception and preparation of procurement procedures,
  • advice and assistance in procurement procedures,
  • making or answering complaints,
  • representation in review procedures,
  • preparation of legal opinions with regard to the existence of a public contracting authority or a  tender procedure,
  • support in the preparation of an application to participate or an offer,
  • clearance of procurement law issues concerning grants / subsidies.


Advisers

Ricarda Baudis

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