Principle of Investigation in Procurement Law 2026

Principle of investigation: the duty of procurement review bodies to establish the facts ex officio – its role in review proceedings.

Definition: The principle of investigation (ex officio principle) obliges procurement review bodies and courts to establish the facts relevant to their decision ex officio, without being limited to what the parties submit.

Last updated: January 2026 · Legal basis: § 163 GWB; § 327 BVergG 2018; AVG (Austria)

What is the principle of investigation?

The principle of investigation (also: ex officio principle, inquisitorial principle) is a basic procedural principle under which the deciding authority is required to establish the facts itself. It stands in contrast to the principle of party presentation (adversarial principle), under which the parties themselves are responsible for setting out the facts.

In German review proceedings before the Procurement Chamber, the principle of investigation applies under § 163 GWB: the Procurement Chamber establishes the facts ex officio. It is not bound by the parties' applications and may also examine matters beyond the subject of the application if there are indications of further breaches of procurement law.

Significance in review proceedings

In procurement review proceedings, the principle of investigation is particularly important because bidders often do not have full knowledge of the internal procurement procedure. As a rule, bidders cannot access the contracting authority's procurement file and therefore cannot put forward all circumstances that may be relevant to the decision.

The principle of investigation ensures that:

The Procurement Chamber is not limited to the bidder's submissions
It can inspect the complete procurement file
It can pick up breaches that none of the parties has raised

Limits of the principle of investigation

Even in review proceedings, the principle of investigation is not unlimited. In Germany, the Procurement Chamber is bound by preclusion in respect of breaches that are precluded (raised or invoked too late). In principle, it cannot consider such breaches ex officio.

Distinction from the principle of party presentation

Unlike in civil proceedings, in procurement review proceedings the parties are not solely responsible for setting out the facts relevant to the decision. This protects in particular bidders who, as applicants, typically have less information available to them than the contracting authority does.

Austrian context

Austrian procurement legal protection is likewise based on the ex officio principle. Under the AVG (General Administrative Procedure Act), administrative authorities are required to establish the facts ex officio. The Federal Administrative Court, acting as the first-instance procurement review body, follows this principle.

Related terms

FAQ

Does an applicant bidder have to identify every breach of procurement law in review proceedings? The bidder must at least set out what the alleged breach consists of. The Procurement Chamber may, however, also take up further breaches that have not been expressly raised, where indications of them can be found in the file.

Can the Procurement Chamber summon witnesses or appoint experts? Yes. As part of its ex officio investigation, the Procurement Chamber may take all necessary evidence, including witness examinations and expert opinions.

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