Right to Be Heard in Procurement Law 2026

Right to be heard in procurement law: fundamental right to comment before adverse decisions – significance in award and review proceedings.

Definition: The right to be heard is a fundamental procedural right that gives every person the right to comment on facts and legal issues relevant to a decision before an adverse decision is made against them – in procurement law it applies both in the award procedure itself (e.g. before excluding a bidder) and in review proceedings.

Last updated: January 2026 · Legal basis: Art. 41 CFR (EU Charter of Fundamental Rights), Art. 6 ECHR, Art. 103 para. 1 GG (Germany), Art. 8 B-VG (Austria), BVergG 2018

Constitutional Foundation

The right to be heard is a constitutionally guaranteed fundamental right that is recognised in all legal systems of EU Member States and must also be observed in procurement law. In Germany, it is expressly enshrined in Art. 103 para. 1 GG; in Austria it follows from the rule-of-law principle of the B-VG and Art. 6 ECHR. At EU level, Art. 41 of the Charter of Fundamental Rights guarantees the right to good administration, which includes the hearing of those affected.

Right to Be Heard in the Award Procedure

In the award procedure, the right to be heard manifests itself in particular in the obligation of the contracting authority to give a bidder the opportunity to comment before exclusion. Typical situations:

Before exclusion due to lack of suitability: Before the contracting authority excludes a bid due to insufficient suitability of the bidder, the bidder should be given the opportunity to submit additional documents or explanations.
Before exclusion due to an unusually low price: The bidder must be asked to clarify their bid before it is excluded.
Before exclusion due to bid rigging: Before a bidder is excluded on suspicion of anti-competitive collusion, they must be given the opportunity to comment.
Before exclusion due to violation of the prohibition on participation: When third parties were involved in advance and are to be excluded.

Right to Be Heard in Review Proceedings

In review proceedings, the right to be heard is a central procedural principle that affects all parties to the proceedings. The procurement review bodies are obliged to:

Inform all parties of pending applications
Give the parties sufficient time to comment
Take note of the parties' submissions and consider them in the decision
Not base any decision on facts on which the parties were unable to comment

Legal Consequences of Violation

A violation of the right to be heard can result in the unlawfulness of an award decision or a decision of the review authority. In the award procedure, the violation can be asserted in review proceedings; in the review proceedings themselves, it can be challenged with the relevant remedy (in Austria: appeal on points of law or complaint; in Germany: immediate complaint).

Related Terms

FAQ

Must the contracting authority hear every bidder before every decision? No. The right to be heard applies before adverse decisions (e.g. exclusion). For general bid evaluation, no separate hearing is required.

Can the right to be heard be waived? No. As a constitutional right, it is not at the parties' disposal; an advance waiver is invalid.

How long must the deadline for comment be? A reasonable period that allows a substantive response. In procurement law, several days to weeks are generally appropriate, depending on the scope and complexity of the matter.

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