International Construction Law Review
PUBLIC PROCUREMENT REVIEW MECHANISMS AND RULES ON DAMAGES IN GERMAN LAW
DR HELMUT WIRNER*
Senior Legal Counsel, HOCHTIEF Aktiengesellschaft, Essen, Germany
German national law provides for specific public procurement mechanisms in the 4th Part of the Act against Restraints of Competition.1 Bidders now have individual rights based on public procurement rules which they might rely on in court.2 As regards damages, the Act against Restraints of Competition provides for a specific rule regarding compensation of costs for preparing a bid.3 Compensation for lost profits is regulated by the general law on damages, particularly by the principles of culpa in contra-hendo
4 and delict.5 Details of the German rules on public procurement review mechanisms and on the relevant rules on damages are given below with the solutions suggested regarding four specific cases, whereby it is intended to give an outline of possible decisions by German public procurement review bodies.
CASES AND QUESTIONS
The cases were those posed for discussion at the Annual Conference of the European Society of Construction Law which was held in 2009 in Copenhagen. In each case, it was assumed the contracting authority had initiated the
* The author is Senior Legal Counsel at HOCHTIEF Aktiengesellschaft, Essen/Germany, and responsible for public procurement law. The present article is based on a speech by the author delivered at the Annual Conference of the European Society of Construction Law, Copenhagen, on 28 August 2009. The text has been adapted to recent modifications in German and EU law and new developments in judicial practice.
1 §§97 et seq. of the Gesetz gegen Wettbewerbsbeschränkungen, referred to below as the Act against Restraints of Competition (as last amended by the Act on Modernization of Public Procurement Law of 24 April 2009, [2009] Federal Gazette I, 790).
2 §97 (7) of the Act against Restraints of Competition. Prior to insertion of the Fourth Part on the Award of Public Contracts into the Act (§§97—129), under German law, aggrieved bidders were not entitled to rely on individual public procurement rights in court (see “Reasons on the Draft of the Second Law to modify the Statute on the Principles of the Spending of Public Funds”, Bundestags- Drucksache (Federal Parliament Printed Matter), No 12/4636 of 25 March 1993, p. 12). The lack of individual rights under national public procurement rules applying to awards above the EU thresholds was found by the Court of Justice of the European Union (referred to as “the Court”) to be in breach of EU law requirements, see Commission v. Germany Case C—433/93 [1995] ECR I—2303.
3 §126, 1st sentence.
4 Act against Restraints of Competition, §126, 2nd sentence, and German Civil Code, §311 (2).
5 German Civil Code, §823 (2).
The International Construction Law Review [2011
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