What is the Obligation to Complain?
The Obligation to Complain (Rügepflicht) under § 160(3) GWB requires bidders to promptly raise recognized procurement violations with the contracting authority. Failure to do so results in losing the right to challenge the violation in review proceedings.
Legal Basis
§ 160(3) GWB addresses four scenarios:
- Recognizable violations in the notice: Complaint by application deadline
- Recognizable violations in tender documents: Complaint by bid deadline
- Non-recognizable violations: Complaint within 10 calendar days of becoming aware
- Non-remedy notice: Review application within 15 calendar days
What Does "Promptly" Mean?
Promptly means without culpable delay. In practice, review bodies typically allow 1-3 days for simple violations and up to 7 days for complex matters requiring legal analysis.
Form and Content
An effective complaint must be in writing, specifically identify the violation and the infringed provision, be addressed to the contracting authority, and request remedial action.
Strategic Significance
The obligation to complain is the most important admissibility requirement for review proceedings. Without a timely complaint, there is no legal protection – regardless of how severe the procurement violation may be.
Practical Tip
Bidders should review tender documents immediately upon receipt and raise concerns promptly. A baseless complaint has no negative consequences, but a missed complaint can forfeit all legal protection.