Legal Protection in Procurement Law 2026 – Review and Remedies
Legal protection in procurement law: bidders can challenge procurement-unlawful decisions. Overview of primary and secondary legal protection.
Definition: Legal protection in procurement law denotes the totality of legal options available to an unsuccessful bidder or candidate to prevent or eliminate procurement-unlawful decisions of the contracting authority or to obtain damages.
Last updated: January 2026 · Legal basis: Remedies Directives 89/665/EEC, 92/13/EEC, 2007/66/EC; BVergG 2018; GWB §§ 155 et seq.
What is Legal Protection in Procurement Law?
Legal protection in procurement law is the core element of a functioning procurement system: it ensures the enforceability of the procurement law principles of equal treatment, transparency and competition. Without effective legal protection, the extensive substantive procurement rules would be ineffectual. EU law therefore expressly obliges Member States to establish rapid and effective review procedures (Remedies Directives 89/665/EEC and 92/13/EEC, last amended by Directive 2007/66/EC).
Primary Legal Protection
Primary legal protection aims to remedy a procurement law violation before the contract is awarded, thereby preserving the unsuccessful bidder's chance of obtaining the contract.
Within the framework of primary legal protection, the affected bidder may:
- Submit a review application to the competent procurement review body (in Austria: Federal Administrative Court, regional administrative courts; in Germany: federal and state procurement chambers)
- Apply for the initiation of interim relief proceedings to prevent the award until a decision is made
- Raise an objection to prompt the contracting authority to self-correct (in particular in Germany a prerequisite for the review application)
The standstill period (at least 15 days after electronic bidder notification) gives the unsuccessful bidder time to submit a review application before the contract is concluded.
Secondary Legal Protection
Secondary legal protection applies after the award has been made and is directed at monetary compensation, since a reversal of the concluded contract is only possible in exceptional cases.
If the contract has already been awarded, the injured bidder may:
- Claim damages for negative or positive interest (before the ordinary courts)
- Have the nullity of the contract established due to a particularly serious procurement law violation (e.g. inadmissible direct award, award during the standstill period)
In Austria, a declaration of nullity for certain serious violations is possible before the BVwG; in Germany before the OLG as the complaint court.
Legal Protection Instances Overview
Austria
| Instance | Function |
|---|---|
| Federal Administrative Court (BVwG) | Federal contracting authorities (above-threshold) |
| Regional administrative courts | State contracting authorities, below-threshold |
| Administrative Court (VwGH) | Appeals instance |
Germany
| Instance | Function |
|---|---|
| Procurement chambers (federal/state) | First instance (above-threshold) |
| Higher Regional Courts (OLG) | Immediate complaint against chamber decisions |
| Federal Court of Justice (BGH) | Legal questions of fundamental importance |
Requirements for the Review Application
A review application is only admissible if certain formal requirements are met.
- Standing to apply – the applicant must have an interest in the contract and assert a violation of their rights through the alleged infringement.
- Obligation to object – in Germany, identified procurement violations must be objected to within ten days before a review application can be submitted.
- Deadline – review applications must be submitted within the statutory deadlines.
- Threshold – primary legal protection through procurement chambers/administrative courts generally applies only in the above-threshold range; in the below-threshold range, the administrative courts (AT) or the ordinary courts (DE) are competent.
Below-Threshold Range
In the below-threshold range, legal protection is weaker than in the above-threshold range, but remains guaranteed by national law. In Austria, the regional administrative courts are also competent for below-threshold proceedings. In Germany, a statutorily regulated review procedure for below-threshold contracts is lacking; affected bidders must rely on civil-law injunction and damages actions.
Related Terms
FAQ
Can I obtain legal protection in the below-threshold range? Yes, but the routes are less clearly structured by law. In Austria, the regional administrative courts are competent; in Germany, bidders must resort to civil-law actions.
How long does a review procedure take? In the above-threshold range, procurement chambers in Germany have five weeks to decide (§ 167 GWB). Similar deadlines apply in Austria. Urgent proceedings can be concluded more quickly.
Must I have lost the contract to obtain legal protection? No. Even an imminent violation of one's own rights (e.g. a discriminatory description of services) may establish standing, provided the bidder has a concrete interest in the contract.
Last updated: January 2026 All information is provided without guarantee. For legally binding advice, please consult a law firm specialising in procurement law.
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