Positive Effects

The Public Procurement Acceleration Act contains welcome measures, such as the simplification of self-declarations and proofs of eligibility, the requirement to comment on alternative bids, and the digitization of review procedures.

Failure to Simplify Through Nationwide Standardization

However, it is not ambitious enough when it comes to nationwide standardization of the proliferation of procurement laws in the sub-threshold sector. The BDI supports the standardization of procurement law in the below-threshold sector but notes the absence of a nationwide, uniform, and binding regulation based on the Below-Threshold Procurement Ordinance and Section 1 of the Procurement and Contract Regulations for Construction Services, Part A. After all, true simplification would mean finally eliminating the legal patchwork created by the various state regulations and thus ensuring uniform nationwide procurement provisions—and consequently standards and forms—below the European thresholds. The current conditions make it difficult for companies operating nationwide—especially SMEs and startups—to participate in public procurement because they must comply with different requirements in each federal state.

Failure to Strengthen Environmentally and Climate-Friendly Procurement

The BDI advocates for greater consideration of environmental and climate-related aspects in public procurement. To encourage public procurers to factor environmental and climate-related aspects into their decisions when selecting the subject matter of a tender and designing the procurement process, the BDI had proposed a requirement for the contracting authority to provide justification in cases where environmental and climate-related aspects are not to be taken into account in a specific procurement process (“shall” instead of “may”). A corresponding provision was not included in the Public Procurement Acceleration Act.

Restriction of effective primary legal protection is legally questionable

By restricting effective primary legal protection in the above-threshold sector through the abolition of the suspensive effect of an immediate appeal against a negative decision by the Public Procurement Chamber, the Procurement Acceleration Act goes far beyond the goal of achieving an acceptable acceleration. The BDI had raised legal concerns in this regard. The Higher Regional Court of Düsseldorf shares these concerns with regard to a provision with the same content in the Bundeswehr Procurement Acceleration Act and has now referred the relevant provision to the Federal Constitutional Court.

Warning Against the Erosion of Competition and Transparency in Public Procurement Law

The BDI also takes a critical view of the trend toward exempting an increasing number of public contracts from public procurement law for the sake of simplification and expediting the process—for example, by expanding public-public cooperation and raising the thresholds for direct awards. This comes at the expense of competition and transparency—the fundamental principles of public procurement law—and thus at the expense of taxpayers.

Procurement Procedures and Law Unfairly Labeled as Obstacles

Furthermore, the conduct of procurement procedures accounts for only a negligible portion of the time required for the entire procurement process; consequently, the potential for time savings within the procurement procedure itself is minimal. Instead, we continue to recommend focusing on the processes that precede the procurement procedure—such as needs assessment, capability requirements, planning and approval procedures, and internal coordination—and implementing measures to expedite these processes. Furthermore, professionalizing and fully digitizing procurement procedures is an effective way to accelerate all public procurement, as is ensuring that the implementing agencies have adequate personnel and technical resources.