Procurement law

»Public sector contractors

We provide public sector contractors with extensive advice on all aspects of procurement law. Our service begins even before the commencement of the actual tendering and selection process. We analyse and structure our clients' procurement processes and systems. When doing so, our highest priority is avoiding structural sources of error such as those in the documentation process.

Procurement procedures require efficient and detailed planning. This is the only way to avoid delays during the procedure – for example, due to applications to review contract awards – and achieve the goal of the commercial procurement process. Prior to the procurement process, we therefore perform thorough checks for our clients on which procurement regulations must be observed in each particular case.

We support public sector contractors in all phases of the procurement process – from producing the notice and tender documents to performing the selection process, evaluating the tenders and awarding the contract. We are always there for our clients, even when responding to bidder enquiries and complaints and during contract award review proceedings. We draw on our experience in all stages of the procurement process to ensure that our clients can maximise all of the opportunities available to them under procurement law.

»Contractors and bidders

We supervise contractors and bidders in all phases of the tendering process. We provide support with producing requests to participate and offer documentation and with formulating bidder enquiries and complaints. We have extensive expertise in the legal organisation of bidder consortiums and subcontracting relationships – if necessary, we involve our company law solicitors.

Contract award reviews are often associated with significant expense. Therefore, we check the prospects of success for our clients in advance and develop a viable decision-making basis. Our clients profit from our solicitors' wealth of practical experience in contract award review and appeal proceedings, and also their knowledge of the current decision-making practice of the contract awarding councils and senates (Vergabekammern und Vergabesenaten).

»Industrial tendering

Our solicitors have extensive practical experience in the area of industrial tendering – particularly in the sectors of transport and energy. We support industrial contractors with the organisation, performance and documentation of tendering procedures in accordance with procurement law.

Cartel-related and regulatory issues often arise when awarding industrial contracts. In this case, our clients profit from the expertise of our solicitors in public commercial law, who we involve to provide advice on procurement law if necessary.

»Procurement law and cartel law

In the case of tendering processes, cartel-related issues increasingly arise in practice – on the customer's side as well as on the bidder's side. For market-dominating or powerful customers, duties relating to the organisation and undertaking of tendering processes exceeding those of procurement law can arise from the prohibitions of discrimination and abuse under cartel law. Expertise in cartel law is also required in the case of excluding bidders involved in cartel and/or bidding arrangements from the tendering process.

A number of cartel-related issues can also arise on the bidder's side: the establishment of bidder consortiums, duplicate and multiple applications by bidders, bidder consortiums and/or subcontractors or self-cleaning measures to restore trustworthiness following cartel and bidding arrangements. Here, our many years of practical experience really come into play on the interface between procurement law and cartel law.

Time and time again, the German Federal Cartel Agency (Bundeskartellamt) and European Commission reveal cartel and bidding arrangements to the detriment of public contractors. In recent years, we have supported aggrieved buyers from various industries with enforcing damages claims under cartel law. Our solicitors have particular expertise in enforcing public contractors' fixed damages claims on the grounds of cartel and bidding arrangements as governed in the terms of contracts and conditions of purchase. Besides participating in clarifying fundamental legal issues, our solicitors have also been able to successfully enforce damages claims for some clients.

»Procurement law in healthcare

Procurement law has now reached the healthcare sector. Our solicitors have been involved in this process from the very start and have extensive practical experience in the field of healthcare procurement law. We advise service providers on the area of statutory health insurance, particularly when awarding pharmaceutical discount contracts in accordance with Article 130a Para. 8 of Book 5 of the German Social Security Code (SGB, Sozialgesetzbuch) and awarding supply contracts in the areas of wound care, cytostatics supply and the supply of medical aids.

Procurement law does not just present challenges for statutory health insurance funds and service providers. Procurement law also focuses on the procurement of medical products such as drugs, medicinal products, medical devices or radiological services by hospitals. Our solicitors are well acquainted with the structure and function of the healthcare markets and their special regulatory features. Therefore, we can take action for clients quickly and without the need for lengthy preparation.

»Procurement law and subsidies

Recipients of subsidies and grants are also frequently subject to the provisions of procurement law. Violations of procurement law can lead to the reclamation of subsidies on a major scale – even years after payment. We advise public and private recipients of subsidies or grants on arranging, performing and documenting procurement processes in compliance with the law.

We also support recipients of subsidies and grants with the maintenance of previously awarded contracts and represent them in hearings before subsidy and grant providers or in reclamation processes. In this respect, our clients profit from our solicitors' particular expertise in and experience of the field of public commercial law.

»Concessions awards

The granting of concessions is not subject to hardcore cartel law (Articles 97 et seqq. of the German Act against Restraints of Competition (GWB, Gesetz gegen Wettbewerbsbeschränkungen)). However, the granting of concessions frequently leads to obligations under procurement law, which arise from special legal regulations, the prohibitions of abuse or discrimination under cartel law or jurisdiction. Examples of the concessions granted include the granting of electricity and gas concessions, the granting of concessions in the field of organising and mediating sports bets or the granting of rights to marketing on outdoor advertising space.

Besides expertise in procurement law, support with the granting of concessions frequently also requires knowledge of cartel law and public commercial law – on the side of the bidder as well as on the side of the awarding body. In the area of commissions, councils, public companies and market participants can rely on our specific expertise in the interface between procurement law, cartel law and public commercial law.