Administrative Acts in Public Procurement Law 2026 – Public-Law Decisions

Administrative acts in procurement law: distinguishing public-law decisions from private-law procurement decisions in Austria and Germany.

Definition: In the context of procurement law, administrative acts are sovereign decisions by public bodies that flank the procurement procedure – such as concessions, permits or decisions of the procurement-review authorities – which must be distinguished from the private-law decisions taken by the contracting authority within the procurement procedure itself.

Last updated: January 2026 · Legal basis: AVG (Austria), VwGO/VwVfG (Germany), BVergG 2018, GWB

Administrative acts and procurement law – an area of tension

Public procurement law sits at the interface of public law and private law – a peculiarity that is also relevant for the question of which decisions qualify as administrative acts. The contracting authority's decisions in the procurement procedure – award of the contract, exclusion of a bidder, cancellation of the procedure – are, in Germany and Austria, in principle private-law decisions, not administrative acts in the technical sense.

Procurement decisions as private-law acts

The award of the contract is a private-law declaration (acceptance of the tender), not an administrative act. This characterisation has far-reaching consequences: appeals against procurement decisions are brought not before administrative courts but before specialised procurement-review bodies (Vergabekammern in Germany, Federal Procurement Office / procurement review bodies in Austria). These are partly organised as administrative bodies and partly as quasi-judicial bodies.

Administrative acts that flank the procurement procedure

There are, however, public-law decisions that prepare or accompany the procurement procedure:

Building permits, environmental permits as conditions for the award
Entries in the competition register (a public-law act)
Decisions on company certification (e.g. pre-qualification)
Decisions of the procurement-review bodies (e.g. interim measures, review decisions)

These acts are subject to challenge under the rules of the relevant administrative-procedure law.

Austria: the character as a "Bescheid" of procurement-review decisions

In Austria, decisions of the Federal Administrative Court (BVwG) in procurement-review proceedings are issued as "Erkenntnisse" (rulings). The preliminary procedure before the respective regional administrative court is similar in character to a formal administrative decision ("Bescheid"); those decisions can be appealed to the BVwG.

Germany: Vergabekammern and Vergabesenate

In Germany, the Vergabekammern decide in a procurement-specific procedure (§§ 155 et seq. GWB). Their decisions are not administrative acts in the classical sense but can be challenged by immediate appeal to the procurement-law senates of the higher regional courts.

FAQ

Can a bidder challenge the award through administrative-law remedies? No. The award is a private-law act; legal protection is provided through the procurement-specific review procedure.

Can entries in the competition register be challenged? Yes. Entries in the competition register (§ 5 WRegG-DE) can be challenged before the competent regional court.

Last updated: January 2026 All information is provided without guarantee. For legally binding advice please consult a law firm specialising in public procurement law.