Declaratory Procedure in Public Procurement Law 2026

Declaratory procedure in procurement law: a procedure for the judicial or administrative determination of the ineffectiveness of an awarded contract. Austria & Germany.

Definition: The declaratory procedure in procurement law is a legal remedy by which a bypassed bidder or a procurement supervisory authority seeks, after the procurement contract has been concluded, a declaration of the ineffectiveness of that contract or the determination of a procurement-law breach.

Last updated: January 2026 · Legal basis: §§ 135 et seq. GWB, §§ 331 et seq. BVergG 2018, Directive 89/665/EEC as amended by 2007/66/EC

What is the declaratory procedure?

The declaratory procedure provides for post-conclusion legal protection in procurement law: even after the contract has been concluded, procurement-law breaches can still be sanctioned. It is a special legal-protection instrument introduced by the EU legislator with Remedies Directive 2007/66/EC to ensure that serious procurement breaches – in particular unlawful direct awards – cannot be immunised by mere conclusion of a contract.

The declaratory procedure must be distinguished from the regular review procedure: the review procedure takes place before contract conclusion and aims to correct the procurement procedure. The declaratory procedure takes place after contract conclusion and aims to establish the contract's ineffectiveness.

Requirements for the declaratory procedure

Initiating a declaratory procedure is only possible under certain conditions.

Standing

Those entitled to apply are generally:

Undertakings that would have been interested in a contract awarded in breach of procurement law and have suffered damage as a result of the breach
In Austria, also the federal procurement supervisory authority (BVwG) acting on its own initiative
In Germany, public procurement chambers may, in certain circumstances, declare ineffectiveness

Application deadlines

Applications are subject to time limits. Pursuant to § 135(2) GWB, the application period is:

Six months from contract conclusion (general period)
30 calendar days from the applicant's knowledge of the contract conclusion, but no later than six months from contract conclusion
30 days following publication of the contract award notice

In Austria (§ 332 BVergG 2018), similar deadlines apply.

Grounds for a declaratory procedure

The declaratory procedure is limited to certain serious procurement breaches – not every procurement defect leads to the ineffectiveness of the contract.

The most important grounds of ineffectiveness are:

De facto award: Award without an EU-wide notice despite an obligation to publish
Unlawful direct award: Award via a negotiated procedure without prior publication, without statutory justification
Breach of the standstill period: Contract conclusion before expiry of the standstill period, combined with a serious procurement-law breach

Legal consequences

If the procurement supervisory authority declares the contract ineffective, the contract is ineffective ex nunc (from that point onward); services already performed must be unwound under the law of unjust enrichment.

As an alternative to a declaration of ineffectiveness, the procurement supervisory authority can declare the contract effective where overriding reasons of public interest require it to be maintained, and instead impose a fine or shorten the contract term.

Related terms

FAQ

Can a contract still be declared ineffective after it has been concluded? Yes. The declaratory procedure serves precisely this purpose. In the case of serious procurement breaches – in particular de facto awards – the contract can be declared ineffective even after conclusion.

How does the declaratory procedure differ from the review procedure? The review procedure takes place before contract conclusion and aims to correct the ongoing procurement procedure. The declaratory procedure takes place after contract conclusion and aims to declare the concluded contract ineffective.

What is a de facto award? A de facto award occurs where a public contracting authority awards a contract without conducting the statutorily required EU-wide tender procedure. This type of award is the classic basis for a declaratory procedure.

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