Public Procurement Law

The time preceding the public procurement procedure is of pivotal importance to the success of the project. Mistakes in the planning and preparation may lead to massive delays and even the failure of the venture. We can advise you in this important phase on choosing the correct procedure, assessing and describing the services or products to be procured, strategies to adopt concerning potential bidders as well as all other legal, technical, economic and contractual issues. This is of particular importance not only for contracting authorities, but also for bidders, whom we advise on the general strategy to adopt in complex procedures.

The purchase of services and products by contracting authorities is subject to a formal procedure governed by strict legal rules. At the same time, the general aims of the project should not be neglected. We can advise you in both regards, whether you are a contracting authority or a bidder. We can assist you in all steps of the procedure and we will deal with any issues that may occur in a pragmatic manner. We can also advise you in special matters such as procurement procedures subject only to EU primary law or the award of concessions.

Public procurement rules also have to be taken into account after the contract has been awarded. For example, a substantial change of the public contract may lead to an obligation to re-tender the project. This represents a major risk in particular in cases where a target in an M&A-transaction deals with the public sector on a regular basis. In addition, especially in the area of defence and security, so-called public price reviews provided for in the national laws of some countries may lead to substantial reductions of the amounts to be paid by the contracting authority. We know how to deal with these issues and can assist you in line with the legal provisions and in a pragmatic manner. The same holds true for disputes concerning public contracts, which are often affected by public procurement law.

Public procurement is a litigious area. Disputes are carried out before special review bodies, the courts and, with respect to infringement proceedings, the European Commission/the European Court of Justice. Violations of the law during the procurement procedure, the performance of the contract or regulatory issues may end up in court. In addition, public procurement law and related contractual law issues may play a major role in civil proceedings, in arbitration proceedings, in audits by authorities or in criminal investigations. We know these issues and the procedural aspects to be taken into consideration and advise both contracting authorities and bidders in this respect.

Compliance is becoming increasingly important in all areas, including in public procurement law. Companies that have breached the law may be excluded from public procurement procedures, debarred from future public tenders and sued for damages. We support our clients in the implementation of self-cleaning measures in order to secure their continued participation in public tenders and advise contracting authorities in relation to the preparation and implementation of exclusion and debarment.

Moreover, we advise bidders that seek to regain their reliability during self-cleaning procedures of the World Bank and other multilateral development banks. We also assist sanctioned companies in reviewing their compliance systems by acting as monitors admitted by the World Bank.