Berlin Court of Appeal: Section 134 GWB Notices and Transparency

In practice, the pre-award notice under Section 134 of the German Act against Restraints of Competition (GWB) is often treated as a mere formality: name of the preferred bidder, own ranking, earliest date of contract conclusion – done. In its order of 14 April 2026 (Verg 13/25), the Berlin Court of Appeal (Kammergericht) has clearly rejected this practice. The decision significantly strengthens the rights of unsuccessful bidders and has direct consequences for how contracting authorities draft their pre-award notices.

Background: Price as the Sole Award Criterion

A contracting authority had tendered operating services for several refugee accommodation facilities by way of an EU-wide procedure; price was the sole award criterion. In its notice of 16 June 2025, it merely informed the applicant of the name of the preferred bidder, the earliest date of contract conclusion, the applicant’s own ranking and the fact that the preferred bidder’s tender had been cheaper. On 25 June 2025, the applicant objected to the insufficient information and argued that the authority had not adequately reviewed the prices (Section 60 VgV) and the capacity of the higher-ranked bidders. The procurement review chamber upheld the transparency complaint and reset the procedure to the stage before the evaluation of tenders. The contracting authority lodged an immediate appeal against this decision.

The Court’s Decision at a Glance

The Court of Appeal upheld the review chamber’s finding that the transparency complaint was admissible and well-founded. However, it set aside the resetting of the procurement procedure: this measure was disproportionate because it did not remedy the information deficits and might prove excessive if the substantive complaints ultimately failed. The court referred the matter back to the review chamber under Section 178 sentence 2 GWB, with the instruction to grant the applicant access to the files under Section 165 GWB.

Content of the Pre-Award Notice under Section 134 GWB

According to the Court of Appeal, the contracting authority must state the key reasons for its award decision so that the bidder can understand why it is not being awarded the contract. Whe-re price is an award criterion, the notice must at least state the price of the preferred bidder. Where qualitative criteria also apply, the notice must additionally include the scoring of at least the bidder’s own tender and the successful tender. A mere reference to a “lower price” and the bidder’s ranking is insufficient. Trade secrets do not stand in the way: the interest in transpa-rency outweighs the bidders’ interest in confidentiality, at least as regards the total price; the information must, however, be treated confidentially (Section 5 VgV).

Transparency Complaint: Price Review and Suitability

The second finding is particularly relevant in practice: beyond Section 134 GWB, the principle of transparency under Section 97(1) sentence 1 alt. 2 GWB grants bidders an individual right to be informed whether, to what extent and with what result the contracting authority has considered factors that speak against awarding the contract to the preferred bidder. These include, for example, indications of an abnormally low tender (Section 60 VgV), doubts about suitability or capacity (Section 122 GWB), possible grounds for exclusion (Sections 123 and 124 GWB) or errors in the evaluation (Section 127 GWB). After raising a prior complaint, the bidder must explain which information it requires and why; the scope and depth depend on the individual case, and confidentiality interests must be taken into account in line with Section 165(2) GWB. According to the court, a general statement that a price review was carried out “without concerns” is by no means sufficient.

Standing to Apply Despite a Low Ranking

Insufficient information does not in itself constitute damage within the meaning of Section 160(2) GWB. However, if it is precisely the deficient information that prevents the bidder from recognising whether a procurement infringement has occurred that may have impaired its chances of winning the contract, this already constitutes threatened damage. The bidder need only submit what it can based on its state of knowledge – the less it knows, the less it must submit. This is not an inadmissible “shot in the dark”, provided the bidder has made efforts to obtain information. The court was also clear with regard to the review chamber: pointing out that the tender had no chance anyway given its ranking is no substitute for transparency and would carry the lack of transparency into the review proceedings.

Access to Files under Section 165 GWB and Partial Decisions

Where the applicant specifically complains of a breach of information obligations, it cannot be denied a legitimate interest in access to the files. Access is limited only by the substantive complaints whose merits the bidder cannot assess due to the lack of transparency; business and trade secrets generally do not preclude access, provided it is suitable, necessary and appropriate. Outside review proceedings, however, there is no right of access to the files, not even under freedom of information laws. In addition, the review chamber may, by way of a partial decision under Section 168(1) sentence 1 GWB, first oblige the contracting authority to provide specific information before ruling on the substantive complaints.

Practical Guidance for Contracting Authorities and Bidders

For contracting authorities: going forward, pre-award notices should at least state the preferred bidder’s price and – where qualitative criteria apply – the scoring of the bidder’s own tender and the successful tender. Specific questions about the price review and the preferred bidder’s suitability should be answered in a comprehensible and documented manner; blanket confirmations increase the risk of successful review applications and delays.

For bidders: anyone receiving a thin pre-award notice should promptly raise a reasoned transparency complaint, specify the information required and apply for access to the files in the review proceedings. A low ranking does not automatically preclude standing to apply. Compliance with the duty to complain under Section 160(3) GWB remains essential.

We would be pleased to assist you in drafting legally robust pre-award notices and in reviewing and enforcing your rights in procurement review proceedings.