Procurement Acceleration Act: Key points of the draft bill

The German Federal Ministry for Economic Affairs and Energy (BMWE) has presented a draft bill for a “Law to Accelerate the Awarding of Public Contracts.” The draft takes up key elements of the Public Procurement Transformation Act, which was initiated in 2023 but has not been passed. 

The draft should also be seen as a response to the political imperative to make public procurement faster, more efficient, and more strategic – not least in view of the investment backlog, transformation requirements, and the urgency in terms of security policy. 

Regulatory approach and scope 

The draft bill from the BMWE refers exclusively to procurement procedures above the EU thresholds. All federal procurement regulations are to be amended. This will be accompanied by an amendment to the Federal Budget Code (BHO), which will allow the value limit for direct awards to be raised to EUR 50,000 net. 

Flexibilization of the principle of lot division 

Art. 97 (4) GWB (German Act Against Restraints of Competition) is to be amended so that contracting authorities can more easily dispense with lot-based awarding in justified cases in the future. This requires objective justification, for example, in cases where the service is functionally or economically indivisible. At the same time, it should be possible to contractually oblige main contractors to subcontract certain parts of the service to small and medium-sized enterprises. 

Abolition of the suspensive effect of immediate appeals 

One of the most far-reaching changes concerns Art. 173 GWB: Immediate appeals against a decision by the Public Procurement Tribunal will no longer have automatic suspensive effect. The contract may be awarded immediately, unless the appeals court grants relief in individual cases. This fundamentally changes the review procedure. 

New regulations governing public-public cooperation 

The requirements for cooperation between public contracting authorities without the need for a tender are revised in Art. 108 GWB. In future, it will be sufficient for a joint public task to be performed; the previous requirement of mutual performance obligations no longer applies. This incorporates the European legal framework, but at the same time significantly expands the scope of the exception. 

Strategic procurement should take effect earlier 

According to the draft, Art. 28 of the VgV (German Public Procurement Regulation) and the parallel provisions of the Sektoren- and KonzVgV (Concession Awarding Regulation) are to be revised so that public contracting authorities can already take environmental, social, and innovation-related aspects into account during market research. Strategic procurement should thus take effect earlier and be prepared in a more targeted manner. 

Restriction of market access for third-country providers 

In implementation of the ECJ ruling “Kolin” (C-652/22), Art. 97 GWB is being amended to the effect that bidders from third countries without public procurement agreements with the EU can be excluded from the procedure in future. The decisive factor is whether there is reciprocity in market access. 

Waiver of invalidity in the case of de facto awards 

The previously mandatory legal consequence of the invalidity of an award in the case of unlawful direct award (Art. 135 GWB) is to be waived in exceptional cases where compelling reasons of public interest so require. The provision is primarily intended to protect critical infrastructure and supply situations. 

Conclusion: A powerful reform proposal balancing relief, intervention, and a tightrope walk in terms of European law 

The draft bill has a profound impact on the structural principles of public procurement law. In several respects, it follows an approach that is objectively comprehensible and well-founded in terms of legal policy. Making the awarding of lots more flexible, strengthening market research, and incorporating strategic criteria are consistent responses to the growing demand for control by the public sector. The possibility of excluding bidders from third countries without reciprocity is also enshrined in European law and is correct in substance. 

However, the elimination of the suspensive effect of immediate appeals is problematic. It breaks with the basic principle of effective primary legal protection and effectively places the review under the auspices of enforcement priority. The fact that a contract can be awarded before the appeal court has even been called upon contradicts the principles of transparency and equal treatment and is open to challenge under European law. 

The planned exemption clause in Art. 135 GWB for remedying unlawful direct awards must also be viewed in a differentiated manner. The introduction of an exemption for unspecified “compelling reasons of general interest” runs the risk of undermining the previously clear system of legal consequences. Unclear definitions, extensive discretionary powers, and limited judicial review could lead to a de facto devaluation of legal protection. 

Overall, the draft represents a decisive reform agenda with clear objectives. However, where acceleration leads to destructuring, legislative corrections are needed. Effective governance requires procedurally sound framework conditions. The reform can succeed – if it views the rule of law not as an obstacle, but as a structural prerequisite. 

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