Inaction of the Public Procurement Tribunal 2026 – Remedy for Procedural Delay

Definition: Inaction of the public procurement tribunal (Untätigkeit der Vergabekammer) means the failure of the tribunal to decide within the statutory period of five weeks from receipt of a complete review application, opening up the possibility for the applicant to lodge an immediate appeal with the competent Higher Regional Court.

Last updated: January 2026 · Legal status: § 167 (2) GWB, § 172 GWB

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Deadlines and the tribunal's duty to decide

The public procurement tribunal is statutorily required to decide on a review application within five weeks of receipt of a complete application. This deadline is laid down in § 167 (1) GWB and serves the interest in the swift resolution of procurement disputes, since ongoing procurement procedures are blocked by the contract-award stay (§ 169 GWB). In exceptional cases — of particular difficulty or scope — the chair may extend the deadline by up to two further weeks.

Legal consequence of inaction

Where the tribunal exceeds the decision deadline without an extension, the applicant may lodge an immediate appeal with the competent Higher Regional Court (procurement senate) without awaiting a decision of the tribunal. This is governed by § 172 (1) GWB. The Higher Regional Court then steps into the tribunal's shoes and decides on the merits.

The inaction of the tribunal is therefore a special remedy that prevents a review procedure from being rendered ineffective by the inaction of the competent body.

Practical relevance

In practice, inaction of the tribunal is rare, as procurement tribunals generally decide on time. Nevertheless, delays can occur in particularly complex cases or where caseloads are high. Applicants should carefully monitor the calculation of deadlines and obtain timely legal advice where there is a risk of the period being exceeded.

Distinction from the regular immediate appeal

The immediate appeal under § 172 GWB based on inaction must be distinguished from the regular immediate appeal under § 171 GWB against a decision of the tribunal on the merits. A regular appeal challenges the tribunal's decision; an inaction appeal is filed because no decision exists and the Higher Regional Court rules on the merits for the first time.

FAQ

How is the five-week period calculated? The period starts on receipt of a complete review application by the tribunal. "Complete" means that all the information necessary for the assessment is available. An incomplete application suspends the start of the period.

What happens to the contract-award stay in the event of inaction? The contract-award stay under § 169 GWB in principle remains in place during the appeal proceedings, unless the Higher Regional Court lifts it.

Is there a corresponding rule in Austria? In Austria the decision deadlines of the Federal Administrative Court (BVwG) and the regional administrative courts are governed by statute. Where the deadlines are exceeded, administrative-law remedies (inaction complaint) are available.

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