Non-Separately Appealable Decision in Public Procurement 2026

Definition: A non-separately appealable decision is a procurement-law interim decision of the contracting authority that cannot be challenged independently by a review application, but only in conjunction with the next separately appealable decision or with the final award decision.

Last updated: January 2026 · Legal basis: § 160 GWB, §§ 328 ff. BVergG 2018

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What is a non-separately appealable decision?

Procurement law distinguishes between separately appealable decisions (e.g. the tender conditions, exclusion of a bidder, the award decision) and those that cannot be challenged independently, because they are merely preparatory in nature or because the legislator prefers consolidated review. The concept serves procedural economy: if every interim decision were immediately appealable, the award procedure would be blocked by a multitude of parallel remedies.

Examples of non-separately appealable decisions

Typical examples of non-separately appealable decisions are:

• The contracting authority's decision to launch a particular procedure (e.g. negotiated procedure), provided that decision does not itself infringe the bidders' procedural rights
• Preliminary information notices and notices that do not contain a final determination on the award
• Internal evaluation decisions during ongoing bid examination
• Decisions on the composition of the evaluation panel

Distinction from separately appealable decisions

Separately appealable decisions are, in particular: the exclusion decision, the non-consideration decision (bidder information under § 134 GWB), the award of the contract and decisions on cancellation or withdrawal of the procurement procedure. These may be challenged immediately by way of a review application, without the procurement procedure having to be concluded first.

Austria: appealable decisions under BVergG 2018

In Austria, § 328 BVergG 2018 exhaustively governs which decisions of the contracting authority are separately appealable. The distinction between separately and non-separately appealable decisions is more strictly formalised in Austria than in Germany; the catalogue of § 328 BVergG 2018 is narrowly drawn in order to ensure efficient handling of proceedings.

FAQ

What happens if a bidder seeks to challenge a non-separately appealable decision? The review application is to that extent inadmissible. The bidder must wait for a separately appealable decision and may then raise the objection together with that decision.

Can the non-appealability of a decision lead to loss of rights? Yes — if the bidder raises the complaint only in a later review application although it was already aware of the circumstances at an earlier stage, preclusion may occur.

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