Ineffectiveness in Public Procurement

Ineffectiveness in public procurement refers to the absolute invalidity of a contract in cases of serious procurement-law breaches, in particular de facto awards. Governed by § 135 GWB and § 334 BVergG 2018.

Definition: Ineffectiveness in public procurement law refers to the absolute invalidity of a public contract from the outset, which, in the event of serious procurement-law breaches — in particular awards made without the prescribed notice (de facto award) or in breach of the standstill obligation — is declared by the review body on application, pursuant to Art. 2d of Directive 89/665/EEC, § 135 GWB and § 334 BVergG 2018.

Last updated: January 2026 · Legal basis: Art. 2d Directive 89/665/EEC; § 135 GWB; § 334 BVergG 2018

What is ineffectiveness in public procurement?

Ineffectiveness in public procurement is the most severe legal consequence of a procurement-law breach: the contract already concluded between the public contracting authority and the contractor is invalid ex tunc — that is, from the outset. Ineffectiveness does not arise automatically but is declared on application by the competent review body (in Germany: the procurement review chamber; in Austria: the Federal Procurement Office or regional administrative courts).

Ineffectiveness under procurement law is to be distinguished from civil-law nullity under § 134 BGB or § 879 ABGB. Both may exist in parallel but have different conditions and consequences.

Significance and function

The ineffectiveness sanction is the most effective instrument of procurement-law remedy, because it reaches the contract conclusion itself and thereby enables legal protection even after award.

Grounds for ineffectiveness

The Remedies Directive (89/665/EEC, as amended by Directive 2007/66/EC) requires Member States to sanction the following procurement breaches by ineffectiveness:

De facto award – conclusion of a contract without prior EU-wide notice where such notice would have been required (Art. 2d(1)(a) Directive 89/665/EEC)
Breach of the standstill period – award of contract in breach of the standstill obligation following bidder information (Art. 2d(1)(b) Directive 89/665/EEC), provided that the breach prevented the applicant from filing a review application and another procurement breach exists
Framework agreement or dynamic purchasing system – serious breaches in awards based on a framework agreement or a dynamic purchasing system (Art. 2d(1)(c) Directive 89/665/EEC)

Germany: § 135 GWB

In Germany, § 135 GWB codifies the ineffectiveness of contracts. Pursuant to § 135(1) GWB, a contract is ineffective from the outset where the contracting authority has breached § 134 GWB (duty of prior information) or has awarded a contract without prior notice. Ineffectiveness must be declared by the procurement review chamber.

§ 135(2) GWB provides for a limitation period of 30 calendar days from awareness of the breach; in any event, an application for declaration of ineffectiveness is excluded six months after the conclusion of the contract (§ 135(2) sentence 2 GWB). An exception applies where the contracting authority has published the award in the Official Journal of the EU: in that case the period is only 30 days from publication.

Austria: § 334 BVergG 2018

In Austria, § 334 BVergG 2018 governs the declaration of ineffectiveness by the competent procurement-review body. Declaration is made on application. Grounds for ineffectiveness are in particular the award of a contract without notice and the award of a contract in breach of standstill periods.

Ex-ante transparency notice as a safeguard

Public contracting authorities can, in certain cases, avoid the ineffectiveness consequence by voluntary ex-ante transparency notice. Under Art. 2d(4) Directive 89/665/EEC, § 135(3) GWB and § 139 BVergG 2018, such a notice combined with a standstill period of 30 days excludes the ineffectiveness sanction.

Legal basis

Art. 2d Directive 89/665/EEC (as amended by Directive 2007/66/EC) – EU legal basis for the ineffectiveness sanction
§ 135 GWB – Ineffectiveness of contracts (Germany)
§ 134 GWB – Duty of prior information (Germany)
§ 334 BVergG 2018 – Declaration of ineffectiveness (Austria)
§ 139 BVergG 2018 – Ex-ante transparency notice as safeguard (Austria)

Related terms

FAQ

Does ineffectiveness arise automatically? No. Procurement-law ineffectiveness does not arise automatically but is declared on application by the competent review body (the procurement review chamber in Germany; the Federal Procurement Office or regional administrative court in Austria).

Are there time limits for the application for declaration of ineffectiveness? Yes. In Germany the application period under § 135(2) GWB is 30 days from awareness of the breach, but no later than six months after conclusion of the contract. Where the contracting authority has published the award in the EU Official Journal, the period is reduced to 30 days from publication.

Can a contracting authority avoid ineffectiveness? In certain cases yes: by timely publication of a voluntary ex-ante transparency notice in the EU Official Journal and observance of a 30-day standstill period, the ineffectiveness sanction can be excluded under Art. 2d(4) Directive 89/665/EEC.

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