Referral to the Federal Court of Justice (BGH) in Public Procurement Law 2026

Definition: A referral to the Federal Court of Justice (BGH) in public procurement law is a procedure under § 179 GWB in which a higher regional court (OLG) refers a procurement-law question of fundamental significance to the BGH for decision where it intends to depart from the decision of another OLG or of the BGH.

Last updated: January 2026 · Legal basis: GWB § 179

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What is a referral to the BGH in procurement law?

The referral to the Federal Court of Justice (BGH) is a special legal instrument in procurement-law review proceedings that ensures uniform application of the law by all higher regional courts. Since no ordinary appeal on points of law to the BGH lies against decisions of the OLG procurement senates (§ 171 para. 1 GWB), divergent case law of different OLGs could otherwise persist indefinitely. The referral procedure under § 179 GWB provides a remedy: where an OLG intends to depart from an existing OLG or BGH decision, it must refer the legal question to the BGH.

Conditions for referral

A referral to the BGH is permissible only under narrow conditions and is the exception within the procurement-law remedy system.

Under § 179 para. 1 GWB the OLG is required to refer where:

1. Divergence: the OLG intends to depart from a decision of another OLG or of the BGH in a procurement matter, and
2. Material relevance: the divergent legal question is material to the decision in the specific case.

Referral therefore requires that a legal question has already been decided differently by another court. A merely abstract question of principle without any divergent case law is not sufficient.

Procedure

The referral procedure is an independent procedure that initially "freezes" the underlying procurement procedure.

1. The OLG establishes that it intends to depart from another OLG or BGH decision.
2. The OLG refers the legal question to the BGH by order.
3. The OLG procedure is stayed pending the BGH's decision.
4. The BGH decides the referred legal question and returns the matter to the OLG for a final decision.
5. The OLG is bound by the BGH's legal view.

Significance for procurement-law practice

The referral procedure has substantially contributed to the harmonisation of German procurement case law and has produced numerous fundamental BGH decisions on procurement law.

Well-known BGH decisions issued in referral proceedings concern, among other things:

• Questions of bidder suitability and proof of suitability
• Requirements for specifications
• Limits of the prohibition on negotiation
• Admissibility of variants
• Documentation requirements in procurement procedures

The BGH case law from referral proceedings is authoritative as a guideline for all OLGs and Vergabekammern and is extensively commented on in the procurement-law literature.

FAQ

Can parties apply for a referral to the BGH? No. Referral is solely a matter for the OLG of its own motion. The parties can suggest a referral but cannot compel one.

How long does a BGH referral procedure take? A referral procedure generally takes several months to over a year. As the OLG procedure is stayed during the referral, the overall review proceedings are extended accordingly.

Is the BGH's decision in the referral procedure binding? Yes, the referring OLG is bound by the BGH's legal view. Other OLGs are not formally bound, but in practice they follow the BGH's decision.

Are there alternatives to referral? No. Where the OLG intends to diverge, referral is mandatory. There is no possibility of maintaining a divergent legal view.

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