Separately Contestable Decision in Procurement Law 2026

Definition: A separately contestable decision is a contracting authority decision in a procurement procedure that the law expressly classifies as independently reviewable, and against which a bidder or candidate must lodge a review application within a preclusion period if they are not to lose their legal protection.

Last updated: January 2026 · Legal basis: § 2 No. 16 BVergG 2018; § 160(3) GWB

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What are separately contestable decisions?

The concept of the separately contestable decision is a central procedural tool in procurement legal protection: it determines which contracting authority decisions a bidder must contest without delay – not only at the end of the procedure. If the bidder fails to challenge a separately contestable decision in time, they lose the right to invoke that point later in the procedure or in a review application against the award decision (preclusion). The principle serves procedural acceleration and legal certainty.

Which decisions are separately contestable?

§ 2 No. 16 BVergG 2018 contains a conclusive list of which decisions are separately contestable under Austrian procurement law. These include in particular:

• The decision on the choice of procurement procedure
• The decision on the content of the tender documents (in particular discriminatory specifications or eligibility criteria)
• The decision to exclude a candidate or bidder
• The decision on the award (notice of intent to award)
• The decision to cancel the procurement procedure

The German GWB has a similar system: § 160(3) GWB sets out a duty to object that applies to recognisable procurement breaches.

Deadlines and preclusion

The period for contesting a separately contestable decision is in principle ten days from notification of the decision in Austria (§ 321 BVergG 2018 for the above-threshold area). This period cannot be extended. If missed, the objection is precluded in the further procedure, i.e. it can be raised neither before the Federal Administrative Court nor in a later review application.

Under German procurement law, § 160(3) GWB establishes a duty to object: recognised breaches must be raised with the contracting authority within ten calendar days before a review application can be lodged.

Practical significance

For bidders, knowledge of separately contestable decisions is critical: a bidder who fails to challenge a discriminatory tender condition within the deadline cannot rely on it later. This applies in particular to unlawful eligibility requirements, inadmissible product specifications in the bill of quantities, or an incorrect choice of procedure. Bidders should therefore systematically review each contracting authority decision for legal admissibility as soon as it is notified.

FAQ

What happens if I miss the contest deadline? The objection is precluded and can no longer be raised in the review procedure. The competent review body will reject the application as inadmissible to that extent.

Does preclusion also apply to breaches I only identified after the deadline? No. Preclusion only applies to circumstances the bidder could have identified with reasonable care. For non-recognisable breaches, the period only starts to run from the time the bidder gains knowledge.

Must I also separately contest tender documents? Yes. Unlawful content in the tender documents (e.g. discriminatory eligibility requirements) is separately contestable. A bidder who participates without challenging the conditions loses that objection in the review procedure.

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