Failed bidders gain FOI access to procurement evaluations, German court rules

It comes after an unsuccessful bidder in a Europe-wide tendering procedure by Germany’s employment agency missed out after being told its bids had not met minimum requirements.

In this case, the unsuccessful bidder did not initiate a review of the procurement process through the Vergabekammern – the specialist German body that handles bid challenges in procurement – but instead applied for access to the evaluation documents under FOI laws.

The employment agency had refused to release its full reasoning, disclosing only individual scores, after citing confidentiality obligations under procurement law, but now the Federal Administrative Court has upheld the bidder’s right (link in German) to access the full evaluation reasoning for its own bids.

Lars Hettich, a public commercial law expert with Pinsent Masons in Germany, said the ruling would create greater opportunities for unsuccessful bidders to find out the full reasoning behind their rejection.

“Freedom of information law is fast becoming a mainstream instrument in the public procurement toolkit,” he explained.

“For bidders, it is now an integral part of any post-award strategy following an unsuccessful tender, while for contracting authorities, the ruling creates a clear message: thorough, consistent, and legally sound evaluation documentation is a fundamental requirement of the process.”

In German law, FOI legislation is only overruled by sector-specific rules where they cover essentially the same grounds – governing access to official information in a comprehensive and conclusive way – with the Federal Administrative Court finding that the relevant procurement provisions did not meet this requirement.

But while confidentiality provisions in public procurement regulations in Germany restrict access to information on confidentiality grounds, they are designed to protect bidders’ information from being disclosed to third parties, rather than to the bidder who submitted the request about their own bid.

Hettich explained that as this means every company taking part in a bidding process could have the same access to information on its own bid, there would be no risk of distorted competition.

“For companies, this allows them to make an FOI request much later, as they do not face the same strict deadlines which govern review proceedings,” he said.

“It will also allow them to obtain information which may reveal errors in the evaluation process and serve as the evidentiary basis for damages claims under German competition law, something previously underutilised.

“For authorities, however, it means poorly reasoned evaluations now carry a real risk of legal exposure, and they should organise their evaluation documentation from the outset so bidder-specific reasoning can be separated from information relating to other bidders without disproportionate effort.