Notice of Defects in Public Procurement 2026

Notice of defects in public procurement: informal or formal complaint of procurement breaches by bidders before initiation of review proceedings.

Definition: The notice of defects (Mängelrüge) is the complaint by an applicant or bidder to the public contracting authority concerning an alleged breach of public procurement rules; in Germany, it is a condition for the admissibility of a review application before the procurement review board.

Last updated: January 2026 · Legal basis: § 160 (3) GWB, BVergG 2018

What is a notice of defects?

The notice of defects is a mandatory admissibility requirement in German procurement law: anyone who fails to promptly complain to the contracting authority of an identified breach of procurement rules loses the right to invoke that breach in subsequent review proceedings. The requirement to file a complaint is set out in § 160 (3) GWB and serves to give the contracting authority the opportunity to self-correct before formal review proceedings are initiated.

A notice of defects must be raised with the contracting authority – not with the procurement review board. There is no formal requirement, but for evidentiary reasons it should be made in writing.

Obligation to complain under § 160 (3) GWB

Under § 160 (3) GWB, a review application is inadmissible to the extent that the applicant identified the alleged breach of procurement rules before filing the review application and failed to complain to the contracting authority promptly. According to settled case law, "promptly" means: without culpable delay, generally within one to three working days of becoming aware of the breach.

Key case groups:

Breaches in the procurement documents: must be complained of by the expiry of the submission deadline
Breaches in the contract notice: must be complained of by the expiry of the application or submission deadline
Breaches identified after receipt of the pre-award information (bidder information under § 134 GWB): must be complained of within 15 calendar days

Complaint in Austria

Austrian procurement law under BVergG 2018 has no general complaint requirement comparable to German law as a condition for admissibility of the review application. Instead, strict application deadlines apply (§ 342 BVergG 2018) within which a review application must be filed with the Federal Administrative Court (BVwG) or the state procurement review authorities. A prior complaint to the contracting authority is not mandatory in Austria but can be advisable.

Requirements for a valid complaint

A notice of defects must specify the alleged procurement breach sufficiently concretely so that the contracting authority is able to identify and remedy the error. Generic or general complaints do not satisfy the requirement. The bidder must describe the breach in such a way that the contracting authority can clearly identify it.

Consequences of failing to complain

If a bidder fails to complain in good time of an identified breach, it loses its right of review to that extent – the corresponding submission is precluded in review proceedings. This applies, however, only to actually identified breaches (not to identifiable ones). Actual knowledge of the breach is a precondition for the preclusion effect.

FAQ

Must the notice of defects be in writing? The law prescribes no particular form. For evidentiary reasons, however, a written complaint by email or letter with proof of receipt is always recommended.

What is the difference between a complaint and a review application? The complaint is addressed to the contracting authority and is an extrajudicial complaint mechanism. The review application is the formal legal remedy before the procurement review board.

How much time does the contracting authority have to respond to a complaint? There is no statutory deadline. If more than 15 days pass after the complaint without remedy, the bidder can file a review application (§ 160 (3) no. 4 GWB).

Is there a notice of defects also in the below-threshold range? In the German below-threshold range (UVgO, VOB/A), separate rules apply; a formal complaint requirement as a condition for admissibility does not exist there in the same way.

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