An application for review must be submitted in writing to the procurement chamber and must be substantiated without delay. It should contain a specific request (Section 108 I GWB). The following paragraph of the standard places further requirements on the level of detail of the statement of grounds.
In practice, it has become common practice that applications for review are generally submitted in a single pleading including the request and the statement of grounds. However, the wording of Section 108 ARC also allows for a split submission in a request and subsequent statement of grounds. This is supported by the division of Section 108 I sentence 1 ARC into two conceptual parts. It is not written: “An application for review shall be submitted in writing together with the statement of grounds…” The characteristic of immediacy gives the impression that the subsequent submission of a statement of grounds should only be excluded after the expiry of a certain period.
However, this interpretation is opposed by the acceleration requirement, in view of which the requirements for an effective application in the review procedure are increased. See also Byok in Byok/Jaeger, Kommentar zum Vergaberecht, 3rd ed. 2011, para. 1 on Section 108: “The comparatively strict requirements of Section 108 GWB serve above all to speed up the review procedure”, based on the official explanatory memorandum to the draft law). For this reason, it is correct in practice to submit a uniform written document in which the applications are submitted and then the statement of grounds is made directly. Ultimately, such a procedure is also in the applicant’s own best interest. This is because the preliminary examination of the application for review for obvious inadmissibility or unfoundedness (Section 110 II ARC) requires that the application be accompanied by the request and the statement of grounds. This is logical: as long as a statement of grounds has not been submitted, the application must be classified as manifestly unfounded. Only after a successful preliminary review for the applicant is the application forwarded to the defendant. This is also the practice of the procurement chambers (see e.g. VK Südbayern, decision of 26.11.2015, Z3-3-3194-1-56-11/15). Only then does the suspensive effect set in, which prevents the defendant from being awarded the contract in the award procedure at issue.
As long as the statement of grounds is not available or the specific applications have not been submitted, the procedure cannot even begin. In view of the principle of acceleration and the possible inexperience of the bidder with review procedures, the awarding chambers are likely to draw the bidder’s attention to this consequence (as in the aforementioned procedure) when the application is initially submitted without a statement of grounds. However: They do not have to and could also wait for the statement of grounds to be received. Ultimately, it is the responsibility of the applicant to take all necessary steps as quickly as possible in order to protect their own rights.
While the legal consequences are clear in the case of a split application in which both the application and the statement of grounds are received in good time before the deadlines under sections 101b II and 107 III no. 4 ARC expire, the question arises as to how an application is to be assessed if it is received in good time but the statement of grounds is not submitted until after the preclusion periods have expired.
Due to the special objectives of the ARC contract award review procedure, the requirement of immediate justification within the meaning of Section 108 ARC is probably to be understood as a direct obligation to give reasons. The legislator intended this for good reason. A split between the formal submission of the application and the subsequent submission of the statement of reasons was clearly not intended by the legislator for the ARC procurement review procedure, which is designed as a special expedited procedure.
But can the inexperienced bidder recognize this? The review procedure does not require a lawyer. It is deliberately designed in such a way that even bidders who are not particularly familiar with the law should be able to obtain legal protection, at least in the first instance, in the event of gross violations, simply by reading the relevant standards. If the wording is measured against the principle of “effet utile” under European law, the supposedly simple interpretation that the statement of grounds must be submitted immediately should not be detrimental, at least to the bidder who is not represented by a lawyer.
The provision that the application “shall” only contain a specific request also appears to be open to interpretation. It is difficult to imagine which exceptional case could be addressed here, in which an application for review should be admissible without specifying a request. In the absence of concretely conceivable exceptions, this “shall” provision can effectively only be understood as a “must” provision.
The wording of Section 108 I ARC has been adopted unchanged in the new Section 160 I ARC 2016.
