When the tender is tailored to someone else

You read a tender and, after ten minutes, you have the feeling that someone else helped write it. A reference that fits the incumbent contractor exactly. A brand that is named without equivalents being permitted. A deadline that only someone who already knows the work can meet. Sometimes this feeling is right, and you have effective remedies at hand. They take effect before the bid deadline expires, which is why it pays to act early.

What procurement law requires

Public contracts are awarded through competition and by means of transparent procedures, and the participants must be treated equally. This is set out in Section 97(1) and (2) of the Act against Restraints of Competition (GWB) and is not a mere statement of principle but law that can be reviewed.

Section 31(6) of the Public Procurement Regulation (VgV) is more specific. The specification may not refer to a particular production, a particular origin, a special process, a trade mark, a patent or a particular type if this favours or excludes certain companies. There is an exception for cases where the subject matter of the contract cannot otherwise be described with sufficient precision. In that case, however, the words "or equivalent" must be added.

Since 1 July 2026, there has been a further point of attack. Selection criteria must be proportionate not only to the subject matter of the contract but also to the contract value (Section 122(4) GWB, Section 75(4) VgV). Excessive requirements are therefore easier to challenge than before.

How to recognise a tailored tender

No single point proves anything. If several come together, it is worth following up.

• Brand or type without "or equivalent". The clearest case, because it directly breaches Section 31(6) VgV.
• Minimum turnover above twice the contract value. This limit is set by law. If the requirement exceeds it, the contracting authority needs a specific justification.
• References that only one company can have. For example, a reference for exactly this installation at exactly this contracting authority, or a combination of requirements that hardly anyone meets when taken together.
• Technical values without tolerance. Dimensions that match exactly one brand, even though the function could also be achieved in other ways.
• Certificates that the work does not require. A popular filtering tool.
• Minimum deadline for an extensive scope. If the bid deadline is set at the statutory minimum but the work is complex, anyone who already knows the task effectively has a head start.
• Local presence without an objective reason. Requiring a branch within a certain distance is permissible if the work demands it, for example for short response times in the event of a fault. Without this connection, it can be challenged.
• The same contractor for years. Contract award notices are public. If the same authority has awarded the same subject matter to the same company several times, this is unremarkable in itself, but in combination with the other points it is a clear signal.

First step: the bidder question

The mildest and often most effective remedy. A bidder question is answered for all bidders, and the answer becomes part of the tender documents. This forces the procurement office to commit itself without you challenging the procedure.

Phrase it objectively and with reference to the specific passage. Not "The tender is tailored", but something like: "Item 3.2 of the specification names product X. We kindly ask you to confirm that equivalent products are permitted and to state the criteria used to assess equivalence."

The procurement office often amends the documents as a result. This is the best outcome, because it allows you to take part without anyone losing face.

Second step: the complaint to the contracting authority (Rüge)

If the answer does not help, the remaining option is a complaint to the contracting authority (Rüge). It is a prerequisite for being able to initiate review proceedings later.

The complaint does not require any particular form, but it should be made in writing and identify the point being challenged precisely: which passage of the documents, which infringement and what remedy you are requesting. If the contracting authority does not remedy it, you have fifteen calendar days from receipt of the notification to file an application for review with the public procurement tribunal (Vergabekammer).

What review proceedings cost

The public procurement tribunal's fee is at least €2,500, the standard upper limit is €50,000, and in individual cases up to €100,000 is possible. On top of this come your own legal fees and, if you lose, those of the other side. These figures belong in the decision before you file the application.

Also bear in mind that legal protection has become weaker since 1 July 2026. An immediate appeal against a rejecting decision of the public procurement tribunal no longer has suspensive effect, and if the contracting authority prevails, the prohibition on awarding the contract ends as soon as the decision is announced. The contract can therefore be awarded while your appeal is still pending. This makes it all the more important to complain early rather than to litigate late. More on this in the article on deadlines.

Below the thresholds

There are no review proceedings here. You can complain and ask questions, but if the procurement office does not respond, the only remaining route is the ordinary courts, and that practically always comes too late. Below the threshold, the bidder question is therefore even more important than above it, because it is the only remedy that takes effect in time.

The sober decision

Sometimes the right conclusion is not to bid. If several indicators come together, the procurement office gives an evasive answer to your question and the contract value does not justify the cost of review proceedings, you can save yourself the work on the bid. You are then better off investing the two weeks of pricing work in a tender that suits you.

Still, keep a record of the case. If the same authority acts similarly next time, you have a pattern, and patterns are considerably more convincing in review proceedings than a single case.