Suspension of time limits

With the 2nd COVID-19 Act, the time limits for the submission of review, preliminary and declaratory proceedings in award procedures were suspended. As a result, the important consequence of preclusion did not occur in award procedures. Thus, violations of the law, for example in tender documents or in decisions in award procedures (withdrawal or non-admission) were not "cured" by the expiry of deadlines.

This uncertain solution for the awarding practice was cleared up by the 4th COVID-19 Act, which was passed on 3.4.2020. The COVID-19 Accompanying Act on Public Procurement provides that

(i) The suspension of the time limits for review applications ended with the entry into force of the COVID-19 Accompanying Act on Public Procurement. Since 7 April 2020, the time limits for contesting the contract have continued to expire; the suspension between 22 March 2020 and 6 April 2020 is not to be included in the time limits. This means that the preclusion, which is so important for legal certainty in award procedures, may resume.

(ii) The suspension of the decision period of the administrative courts, which is also provided for by the Second COVID-19 Act, ends on the date of entry into force of the COVID-19 Accompanying Act on Public Procurement. Review proceedings will therefore continue to be handled quickly.

In addition, the COVID-19 Accompanying Act on the Award of Public Contracts provides that, due to the current situation caused by the COVID-19 expansion, exceptional procedures cannot be postponed by means of reviews. The prerequisite is that the award procedure serves the urgent prevention and combating of COVID-19 proliferation or the maintenance of public order. In this case, the application for an interim injunction does not have a suspensive effect and the contracting authority can terminate the award procedure by awarding the contract. The bidder may continue the review procedure as a declaratory procedure if necessary.

Emergency Awards

We have already addressed the fact that the COVID-19 pandemic requires special award procedures in our article of 13.3.2020. In addition to accelerated procedures, procurement procedures without prior announcement are particularly suitable in order to quickly cover urgent needs. For more information, see 'impact of the coronavirus - procurement law'.

The Federal Ministry of Justice confirmed our view in a circular letter dated 30.3.2020 and refers, for example, to the possibility of the applicability of exceptional procedures of the negotiated procedure without prior notice or of contract amendments due to the COVID-19-Crisis. See the circular letter of the Ministry of Justice here.

On April 1 2020, the European Commission also issued guidelines to facilitate the interpretation of the European public procurement directives. In these guidelines, the Commission essentially explains the options for shortening procedures in open and restricted procedures in urgent cases and for conducting negotiated procedures without prior publication of a contract notice. The guidelines can be found here.