Federal Chamber: No Access to the Preferred Bidder’s Price

Only in October, we reported on the order of the Berlin Court of Appeal (Kammergericht Berlin) of 14 April 2026 (Verg 13/25), according to which contracting authorities must at least state the preferred bidder’s price in the pre-award notice under Section 134 GWB: Section 134 GWB Notices: Berlin Court on Transparency | ZIRNGIBL. Just a few months later, the Federal Public Procurement Chamber (VK Bund) expressly addressed this decision in its order of 25 August 2026 (VK 2-102/26) – and declined to follow it as regards access to files. The order also contains important statements on the binding effect of answers to bidder questions and on price reviews.

Background: Evaluation of References and Price Review

A federal contracting authority tendered architectural planning services in an open procedure. The award criteria were price (70%) and staff qualifications (30%), assessed on the basis of personal references; only the best reference was to be scored. In response to a bidder question, the authority stated that two of the reference criteria did not have to be met in a single project but could be fulfilled “cumulatively”. After conducting a price review under Section 60 VgV of both the later applicant and the preferred bidder, the authority announced that the contract would be awarded to the preferred bidder’s cheaper tender. The second-ranked applicant challenged the evaluation of its references and raised doubts as to whether the preferred bidder’s tender was economically viable. Relying on the Berlin Court of Appeal decision, it also applied for disclosure of the preferred bidder’s price.

The Federal Chamber’s Decision at a Glance

The VK Bund held the review application to be largely admissible but unfounded. One of the applicant’s references had indeed been evaluated incorrectly. However, even with full quality points, the applicant would not have won the contract, because the preferred bidder’s tender was cheaper and had been properly reviewed. The chamber also rejected the application for extended access to files covering the preferred bidder’s price.

Answers to Bidder Questions Amend the Tender Documents

The published evaluation matrix initially did not allow criteria to be combined across references. According to the VK Bund, however, the answer to the bidder question directly amended the tender documents, without any express change to the award criteria being required: bidder questions and the answers to them regularly become part of the tender documents and can modify their con-tent. What matters is not what the contracting authority intended, but how an objective recipient could understand the answer. Consequently, the applicant was not precluded under Section 160(3) sentence 1 no. 3 GWB: it could only recognise that the authority had departed from its answer from the reply to its complaint.

Price Review under Section 60 VgV and Duty to Complain

Where a tender appears abnormally low because of the gap to other tenders or to the cost estimate, the contracting authority must review the prices; case law regularly refers to a threshold of around 20%. Here, the tenders were close to each other but well below the cost estimate – the authority therefore reviewed both tenders in the same way. Regarding complaints, the VK Bund clarifies that a bidder may assert what it can reasonably consider likely or possible on the basis of its limited information, but must put forward supporting facts. The fact that its own, more expensive tender had been reviewed was sufficient. By contrast, a mere extensive list of questions on the price evaluation does not meet the requirements of a complaint.

No Award Chance – No Infringement under Section 168 GWB

The VK Bund emphasises that review proceedings are not an objective complaints procedure but serve to protect individual rights. If an award is ruled out despite a procurement error, there is no infringement of rights within the meaning of Section 168(1) sentence 1 GWB, which is required for the application to succeed. Since the authority had not combined points from different references for any bidder, a re-evaluation would not have changed the outcome.

Access to the Preferred Bidder’s Price: Federal Chamber vs. Berlin Court?

Particularly noteworthy is the chamber’s engagement with the Berlin Court of Appeal. Since price is always an award criterion, the court’s view would in practice mean that the preferred bidder’s price would have to be disclosed in every review proceeding – a departure from the principle that prices must be kept confidential outside the scope of the VOB/A. The VK Bund applies the balancing test established by the Federal Court of Justice (X ZB 10/16) even stricter: the appli-cant’s interest in disclosure must be weighed against the preferred bidder’s interest in confiden-tiality. Here, the latter prevailed because the applicant knew the price gap was small, knew from its own price review what had been asked of the preferred bidder, and both companies will con-tinue to compete in the future. Routine disclosure could also increase market transparency and dampen competition. Both decisions share the underlying idea that bidders must be able to un-derstand the award decision. They differ in approach: the Berlin court derives a duty to state the price from Section 134 GWB and lets confidentiality interests give way at least as regards the total price; the VK Bund rules on access to files under Section 165 GWB and requires a case-by-case balancing. The order does not expressly decide whether the pre-award notice in this case complied with Section 134 GWB.

Practical Guidance for Contracting Authorities and Bidders

For contracting authorities: answers to bidder questions are not non-binding explanations. They should be worded precisely and applied consistently in the evaluation; in case of doubt, an express amendment of the tender documents is advisable. Price reviews should be carried out uniformly and documented. Until the higher courts provide clarity, it remains open how much price transparency the pre-award notice requires – a careful case-by-case assessment is advisable.

For bidders: answers to bidder questions should be carefully documented and taken into account when preparing the tender. Complaints regarding price reviews require specific supporting facts; lists of questions alone are not enough. There is no automatic right of access to the preferred bidder’s price – the specific need for information should therefore be substantiated. It is also worth considering the weighting of the award criteria: an error alone will not lead to success if it cannot change the outcome.

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