No Subsequent, Isolated Partial Cancellation in Case of Loslimitation

Background: Awarding SPNV Services and Lot Limitation

The decision of the OLG Schleswig of 21 November 2025 (Ref. 54 Verg 4/25) is based on the award of local rail passenger transport services (SPNV) for the “Central” and “South-West” networks in Schleswig-Holstein. The services were divided into two specialist lots, and a strict lot limitation was imposed: each bidder was allowed to submit bids for both lots, but could generally only be awarded one lot. The award was to be made for the combination of lots with the lowest total score (based solely on price).

The contracting authority had an expected value determined in advance by an expert opinion and later concluded for the Central lot that the most economical offer exceeded this expected value by €12.4 million per year, or a total of approximately €148.8 million (about 42%). Relying on § 63 (1) sentence 1 nos. 3, 4 VgV, they then cancelled the tender only for the Central lot, continued the procedure for the South-West lot, and announced the award for this lot, while the Central lot was re-tendered separately.

The applicant, who had submitted bids for both lots and was ranked first for the Central lot under the original evaluation concept, objected to the isolated cancellation of the Central lot, the continuation of the procedure for the South-West lot, and, among other things, challenged the assessment of uneconomicalness, the proper estimation of contract value, the legality of the partial cancellation despite lot limitation, and the handling of the bid of the third party (in particular § 57 (1) no. 5, § 60 VgV). The public procurement tribunal rejected the application for review; upon immediate appeal, the OLG Schleswig found the partial cancellation of the Central lot to be unlawful and established a violation of the applicant’s rights, while dismissing a further application for a declaration regarding the award of the South-West lot.

Binding Effect of Lot Limitation and Inadmissibility of Isolated Partial Cancellation

The central issue of the decision is whether the contracting authority was permitted to cancel the procurement procedure for one lot (Central) in isolation, even though the procurement documents stipulated a mandatory combined evaluation of both lots under lot limitation. The OLG Schleswig clarified that the overall economic evaluation stipulated in the participation conditions constitutes a legally binding requirement under procurement law, on which bidders may rely.
According to the Senate’s interpretation, this concept means that the lots are economically and evaluatively linked into a single procurement object. The cancellation of “only” one lot in this situation violates the self-imposed rules and is unlawful under procurement law. Due to the self-binding effect of the published award rules, a subsequent switch to a purely single-lot evaluation is therefore inadmissible.

The possibility of a partial cancellation provided for in § 63 (1) sentence 1 VgV is superseded if the contracting authority has itself created an inseparable link between the lots through the design of its procurement documents. The consequence: if the combination of lots is decisive, uneconomicalness can only be established on the basis of the overall package.

Bidder Protection and Self-Binding of the Contracting Authority

The court clearly elaborates the protective function of the award concept and lot limitation: under § 97 (6) GWB, bidders may rely on the award being made strictly according to the announced criteria—including the determination of combinations and lot limitation—and that the procedure will not be subsequently “restructured” by an isolated cancellation.
Doctrinally significant is that the OLG Schleswig qualifies the partial cancellation as effective but unlawful under procurement law and grants the applicant a right to a declaration of the violation of rights. A reversal of the cancellation is precluded under procurement law, as the decision to cancel essentially falls within the organisational freedom of the contracting authority; nevertheless, the declaration opens the door to secondary legal protection (damages) under §§ 181, 182 GWB, provided there was a realistic chance of being awarded the contract.

Conclusion: Caution Against “Creative” Subsequent Adjustments

For procurement practice, the judgment is a clear signal: anyone who links lots in terms of content and evaluation in such a way that the award must necessarily be made for a specific combination of lots effectively precludes the possibility of cancelling only individual lots due to uneconomicalness. In such constellations, either a total cancellation must be considered, or—preferably at an earlier stage—the award concept must be designed so that lot limitation and overall evaluation remain compatible with the option of partial cancellation.
For bidders, the decision provides a solid basis for argument if contracting authorities subsequently wish to deviate from published lot limitations, evaluation matrices, or combination determinations. It is therefore worthwhile to examine procurement documents even more closely in the future to ensure that lot limitations, combination evaluations, and cancellation options are consistent—and to point out to contracting authorities at an early stage that “creative” subsequent adjustments during the ongoing procedure are risky under procurement law and may lead to liability for damages.