Secondary Legal Protection in Procurement Law 2026 – Damages After Award

Secondary legal protection in procurement law refers to the claim for damages after a contract has been awarded. Conditions and distinction from primary legal protection.

Definition: Secondary legal protection is the form of procurement-law remedies that applies after the contract has been awarded and is aimed at compensating an unsuccessful bidder for the damage caused by a procurement-law breach.

Last updated: January 2026 · Legal basis: Art. 2(1)(c) Directive 89/665/EEC; § 181 GWB; § 341 BVergG 2018

What is secondary legal protection?

Secondary legal protection takes over where primary legal protection is no longer available or no longer effective – namely once the contract has been concluded and the award has been made. At that stage, the unlawful award can in principle no longer be reversed (with the exception of declarations of ineffectiveness for particularly serious breaches). The instrument of secondary legal protection is therefore aimed at financial redress: the damages claim.

The EU Remedies Directive (89/665/EEC Art. 2(1)(c)) expressly requires Member States to provide for damages claims for parties harmed by procurement-law breaches.

Relationship with primary legal protection

Primary and secondary legal protection are complementary, not alternative.

Feature	Primary legal protection	Secondary legal protection
Timing	Before award	After award
Aim	Preventing/correcting the unlawful award	Monetary compensation
Jurisdiction	Procurement chambers / administrative courts	Ordinary courts
Outcome	Annulment, correction	Damages

Anyone who could have obtained primary legal protection but did not take it can, under § 181 sentence 3 GWB, only claim the negative interest. This provision is an incentive to file review applications in priority.

Damages claim – basics

A damages claim requires: a procurement-law breach, fault on the part of the contracting authority, loss and causation.

Negative interest (reliance loss)

The negative interest covers the loss suffered by the bidder by relying on the lawfulness of the procurement procedure. It includes in particular:

Costs of preparing the tender
Legal and consultancy fees in the procurement procedure
Costs of site visits and pricing work
Financing costs for preparing the tender

Positive interest (expectation interest / lost profit)

The positive interest covers the profit the bidder would have realised had the contract been awarded lawfully. It requires that the bidder would have won the contract in a proper procedure, which is hard to prove in practice. Courts often only recognise a percentage chance of winning and reduce the claim accordingly.

Competent courts

Damages claims arising from unlawful procurement are to be brought before the ordinary courts – in Germany before the regional courts, in Austria before the Landesgerichte. The procurement chambers and administrative courts do not have jurisdiction over damages.

Limitation

Damages claims in procurement law are subject to the general limitation rules of civil law. In Germany, the standard limitation period is three years from knowledge of the damage and the person liable (§ 195 BGB), and at most ten years from the time the claim arose. In Austria, § 1489 ABGB applies.

Declaration of ineffectiveness as a borderline case

In particularly serious cases, the contract can be declared ineffective even after the award has been made, for example in the case of an unlawful direct award without prior publication (§ 135 GWB; § 334 BVergG 2018). Declaration of ineffectiveness is not classic damages but it is a far-reaching secondary remedy.

Related terms

FAQ

Can I claim secondary legal protection if I did not file a review application? In principle yes, but you can then only claim the negative interest (tendering and procedural costs), not the lost profit.

How long do I have to claim damages? In Germany three years from knowledge of the damage (§ 195 BGB). Do not wait too long, as the limitation period can begin to run with notification of the award decision.

Do I have to prove I would have won the contract? For the positive interest, yes; this proof is often difficult. The negative interest (reliance loss) can be claimed without this proof.

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