Decision in Public Procurement Law 2026

Definition: In public procurement law a decision is any binding determination taken by the contracting authority during a procurement procedure – in particular the award decision, exclusion decisions and the cancellation of the procedure – against which tenderers can bring proceedings before the review body.

Last updated: January 2026 · Legal basis: §§ 134–135 GWB, §§ 143–146 BVergG 2018, Directive 89/665/EEC as amended by 2007/66/EC

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What is a decision in public procurement law?

The concept of a procurement decision is broader than in general administrative law and covers all binding determinations of the contracting authority that affect the rights of tenderers. Procurement law distinguishes between separately challengeable decisions – which give immediate rise to a review application – and decisions that can only be challenged in connection with the final award decision.

Separately challengeable decisions

Not every act of the contracting authority during a procurement procedure is directly challengeable; procurement law restricts direct challengeability to certain decisions. As a rule, the following count as separately challengeable:

• The award decision (decision as to whom the contract is to be awarded)
• The decision to exclude a tenderer
• The cancellation of the procurement procedure
• The decision on the admission or non-admission of a tender or request to participate

Duty to inform before the award decision

Before the contract is awarded, the contracting authority must inform all unsuccessful tenderers of the award decision (notice to tenderers). Under § 134 GWB this notice must contain at least:

• The name of the tenderer to whom the contract is to be awarded
• The reasons why the tenderer was not selected
• The earliest possible date for conclusion of the contract

After the notice has been sent, a standstill period of at least 15 days (10 days where the notice is sent electronically) must elapse before the contract can be concluded.

Contract nullity where no notice is given

If the contract is concluded without prior notice to tenderers or before the standstill period has expired, the contract is null and void (§ 135 GWB / § 334 BVergG 2018). This is a serious legal consequence that contracting authorities must avoid at all costs.

FAQ

How long does a tenderer have to file a review application after receiving the notice? In Germany the review application must be filed before the 15-day standstill period expires in order to trigger suspensive effect. There is no formal time limit for challenge, but the application should be filed without delay.

Must the contracting authority give reasons for excluding a tenderer? Yes. At the request of the excluded tenderer the contracting authority must give the reasons for the exclusion in writing without delay, and within 15 days at the latest.

Can a tenderer challenge the cancellation of a procurement procedure? Yes. The cancellation must be based on one of the grounds for cancellation provided for by law; an unfounded or improper cancellation is challengeable.

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