Review Procedure in Procurement Law

Definition: The review procedure is an administrative-law procedure that provides primary legal protection to applicants and bidders in public procurement against decisions of the contracting authority that breach procurement law, before the award of the contract.

Last updated: January 2026 · Legal basis: Directive 89/665/EEC (Remedies Directive), BVergG 2018 (AT), GWB §§ 155 et seq. (DE)

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What is the review procedure?

The review procedure is the central instrument of primary legal protection in EU procurement law, enabling bidders and applicants to have unlawful decisions of the public contracting authority challenged before an independent body before the contract is awarded. It serves to enforce procurement-law provisions and to safeguard non-discriminatory competition for public contracts. The procedure ensures that any bidder who considers their rights to have been infringed obtains effective legal protection, without being referred to actions for damages after the award.

Purpose and significance

The purpose of the review procedure is to establish lawful conditions in the ongoing tender procedure before the award creates a fait accompli. The EU Remedies Directive 89/665/EEC requires all Member States to provide effective and rapid review procedures that enable the review of procurement-law decisions. Without this legal protection, substantive procurement law would be largely without an enforcement mechanism.

The economic significance is considerable: public contracts above the EU thresholds are subject to a strict legal protection regime, since breaches affect competition in the internal market. The review procedure thus protects not only individual bidder interests but also the functioning of the EU internal market.

Primary and secondary legal protection

Primary legal protection aims to prevent an unlawful award, whereas secondary legal protection is directed at damages after the award has already taken place. The review procedure is the classic primary legal protection: it is initiated before the award and can result in the annulment or correction of the contested decision.

Concrete claims in primary legal protection are:

• Annulment of unlawful decisions of the contracting authority
• A declaration that a particular bid was wrongly excluded
• Order to perform or repeat certain procedural steps
• Interim measures to secure legal protection

Secondary legal protection – claims for damages on the grounds of unlawful awards – is pursued before the civil courts and remains conceptually separate from the review procedure.

Conditions for an application

A review application is admissible only if the applicant has an interest in the contract and claims to have been infringed in its rights by the contested decision. The essential admissibility requirements include:

• Standing: The applicant must have participated in the tender procedure or wish to do so
• Subjective right: A specific infringement of a procurement-law-protected interest must be alleged
• Timeliness: The relevant preclusion deadlines must have been met
• Legitimate interest: The applicant must have a real chance of obtaining the contract if successful

Suspensive effect and standstill period

With the filing of a review application, an automatic standstill period generally takes effect, preventing the contracting authority from awarding the contract. This protective effect is essential, since without it legal protection could be defeated by a rapid award.

The standstill period runs from the time the contracting authority becomes aware of the initiation of the review procedure. Procurement chambers and review authorities can issue interim measures to safeguard the status quo until the final decision.

Legal basis

The obligation to provide effective review procedures follows directly from EU primary law and from the Remedies Directive 89/665/EEC. The essential European legal bases are:

• Directive 89/665/EEC (Remedies Directive) as amended by Directive 2007/66/EC: Fundamental obligations of the Member States to set up review procedures
• Directive 92/13/EEC: Equivalent rules for the utilities sector (water, energy, transport, telecommunications)
• Art. 47 CFR: Right to an effective remedy as a basis under EU law
• Directives 2014/23/EU, 2014/24/EU, 2014/25/EU: Procurement directives with references to the legal protection system

National transposition

Austria (BVergG 2018)

In Austria, the review procedure is governed by §§ 327 et seq. BVergG 2018. The competent review authorities are:

• Federal Administrative Court (BVwG): Competent for federal tender procedures and for utility contracting entities at federal level
• Land administrative courts: Competent for tender procedures of the Länder and municipalities

The review application must be filed in writing and within specific deadlines – generally within 10 working days from awareness of the contested decision. With the filing of the application, an automatic standstill obligation takes effect (§ 351 BVergG 2018). The administrative court must in principle decide within six weeks. An appeal to the Administrative Court (VwGH) is possible but limited to points of law.

Germany (GWB / VgV / UVgO / VOB)

In Germany, legal protection above the EU thresholds is governed by the Act against Restraints of Competition (GWB) §§ 155–184. The review is conducted by:

• Federal procurement chambers (attached to the Federal Cartel Office) for federal contracts
• Land procurement chambers for Land and municipal contracts

A particularity of German law is the duty to complain (§ 160(3) GWB): identified or identifiable breaches must be raised with the contracting authority before initiating a review procedure; otherwise the review application is inadmissible. The deadline for the review application is 15 calendar days after knowledge of the breach, or 15 days after publication in case of a notice.

Decisions of the procurement chambers can be challenged by immediate appeal to the procurement senate of the competent Higher Regional Court (OLG) (§ 171 GWB). The BGH is the final instance on points of law. Below the EU thresholds, German law in principle provides no formal administrative-law legal protection; here, the civil courts have jurisdiction.

Related terms

• Procurement chamber: The first-instance review authority in Germany
• Standstill obligation: Prohibition of the award during the review procedure
• Duty to complain: Obligation to object to identified breaches in advance (DE)
• Secondary legal protection: Damages after the award has taken place
• Prior information: Information duty of the contracting authority before the award (§ 131 GWB, § 44 BVergG 2018)
• TED notice: Publication in the Supplement to the Official Journal of the EU, starting point for deadlines

FAQ

Who can file a review application? Any undertaking that has participated, or wished to participate, in a public tender procedure and claims to have been infringed in its rights by a decision of the contracting authority.

What deadlines apply to the review application? In Austria, generally 10 working days from knowledge of the contested decision; in Germany, 15 calendar days after knowledge of the breach or after publication. The exact deadlines depend on the type of decision and the applicable law.

Must one complain before filing the review application in Germany? Yes. Under § 160(3) GWB, a review application is inadmissible if the applicant has failed to complain to the contracting authority without delay about an identified or identifiable breach.

Can the contracting authority award the contract despite an ongoing review procedure? No. With the initiation of the review procedure, a standstill obligation takes effect that prevents the contracting authority from awarding the contract until the procedure is concluded or the review authority decides otherwise.

Does the review procedure also apply to contracts below the EU thresholds? In Austria, the BVergG 2018 provides for limited legal protection in sub-threshold procurements as well. In Germany, there is in principle no formal procurement-law legal protection below the thresholds; bidders are referred to civil claims.

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