International Construction Law Review
GERMANY’S NEW PROCUREMENT LAW: A FIVE-YEAR ASSESSMENT
DR INGRID REICHLING*
Rechtsanwältin (Lawyer), Munich
AND
WILLIAM KARL WILBURN†
Law Partner, Seyfarth Shaw, Washington, DC, and Brussels
INTRODUCTION
Since 1 January 1999, when the German Act to Revise the Legal Basis for the Award of Public Procurement Contracts (Vergaberechtsänderungsgesetz
) (“Act”) took effect,1
it has become an important component of Germany’s economic, political, and legal landscape on how all public bodies purchase their goods and services. The Act applies to all Europe-wide procurement, starting from threshold contract amounts of €5 million for construction contracts and €200,000 for contracts for the supply of goods or services.2
The short five-year life of the Act has been met with an acceptance that has been wide and deep, a growing body of case law, several interim reforms that have adjusted some of its mechanisms, and, presently, calls for further comprehensive revision. On the whole, the Act has been a great success.
This article offers an assessment of the Act after its first five years: its acceptance, revisions, strengths and weaknesses, current status, and areas of likely change in the future. The German mass media have occasionally portrayed “problems” with publicly visible events arising from isolated procurement phenomena, such as the imposition of tolls on tractor-trailers on the autobahn, or the questionable award of consultancy contracts by the German Federal Labour Office (Bundesanstalt für Arbeit
). Less publicly visible but of much greater importance, the legal maturation of the Act and the accompanying EU efforts to harmonise procurement standards have progressed remarkably well over the last half decade.
* Dr Ingrid Reichling is a Rechtsanwältin (Lawyer) in Munich. Dr Reichling specialises in European and German procurement and administrative law.
† William Karl Wilburn is a Law Partner in the Government Contracts and Construction Practice Group of Seyfarth Shaw, Washington, DC, and Brussels.
1 German Act to Revise the Legal Basis for the Award of Public Procurement Contracts (Vergaberechtsänderungsgesetz
), Federal Law Gazette
, I, 1998, p. 2512, 26 Aug 1998; see Wilburn/Reichling, “Germany Adopts New Procurement Code” [2000] ICLR 130.
2 These thresholds do not apply to contracts in the industry “sectors” for the supply of water, energy, transport, or telecommunications.
[2004
The International Construction Law Review
292