Unsuccessful Bid in Public Procurement 2026

Definition: An unsuccessful bid is the bid of a bidder that is not awarded the contract in the procurement procedure, because another bid was assessed as more economically advantageous under the award criteria or because the bid was excluded; the bidder is entitled to information and, where appropriate, to file inspection, and to legal remedies.

Last updated: January 2026 · Legal basis: § 134 GWB, § 62 VgV, Art. 55 Directive 2014/24/EU, § 131 BVergG 2018

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What is an unsuccessful bid?

An unsuccessful bid exists where a bidder has taken part in the award procedure, has submitted a formally and substantively complete bid, but nevertheless does not win the contract. This may be because another bidder was assessed more favourably under the defined award criteria (losing bid) or because the bid was excluded on formal or substantive grounds.

Contracting authority's information duties

Under § 134 GWB the contracting authority is required to inform every unsuccessful bidder without delay of the name of the successful bidder and of the reasons for not awarding the contract to its bid (so-called bidder information). The bidder information must be sent before the actual award of contract and must trigger the standstill period of at least 15 calendar days.

Content of the bidder information under § 134 GWB:

• Name of the undertaking to be awarded the contract
• Reasons for not considering the bidder's own bid
• Earliest date on which the contract may be concluded (end of the standstill period)

Reasons for non-consideration

Bids may be unsuccessful for two main reasons: formal exclusion (e.g. for incompleteness, formal defects, lack of suitability) or a lower ranking in the bid evaluation.

Frequent grounds for exclusion:

• Missing mandatory documents (where subsequent submission is not possible)
• Submission of an inadmissible reservation of modification
• Demonstrated unreliability of the bidder
• Bid above the available budget

Legal remedies

A bidder whose bid is unsuccessful has the right to apply for review before the competent procurement-review chamber or the Federal Administrative Court — but only within the standstill period of 15 days after dispatch of the bidder information (§ 160(3) no. 4 GWB). Once that period has expired and the contract has been concluded, primary legal protection is no longer available.

Austria: unsuccessful bid under BVergG 2018

In Austria, § 131 BVergG 2018 provides comparable information duties: the contracting authority must promptly inform every unsuccessful bidder in writing and, on request, communicate the reasons for non-consideration as well as the characteristics and advantages of the successful bid.

FAQ

Is an unsuccessful bidder entitled to file inspection? In Germany, an unsuccessful bidder may apply for file inspection in the review procedure (§ 165 GWB), to the extent that no trade or business secrets prevent this. In Austria, there is a right to information regarding the reasons for non-consideration under § 131 BVergG 2018.

Can a bidder claim damages for wasted bid costs? Once primary legal protection has failed, a claim for compensation of reliance losses (bid costs, futile expenses) is generally available where the contracting authority has culpably breached procurement law.

What is the difference between exclusion and non-consideration? An excluded bid was not evaluated due to formal or substantive defects. An unsuccessful bid was evaluated but another bid was assessed as more economically advantageous.

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