Equal opportunities should prevail in public procurement procedures. But what happens if a bidder has exclusive information from previous project participations that impermissibly improves its competitive position by giving it a knowledge advantage in the award procedure?

It was precisely this central question that was the subject of a recent ruling by the Higher Regional Court (OLG) of Saarbrücken (Decision of 07.05.2025 - 1 Verg 1/25). The court had to clarify whether the award of a contract to a bid is lawful if the bidder in question enjoys a considerable advantage over its competitors due to prior project-related knowledge in the award procedure - and the contracting authority fails to compensate for this.

What was it about? Research project as a door opener in the award procedure 

Knowledge advantage in the award procedure InequalityThe subject of the procedure was a contract for the preparation of flood hazard maps in Saarland. One bidder (the subsequent respondent) was awarded the contract, although it had considerable preliminary work from an earlier research project. There it had - on behalf of the Saarland Ministry of the Environment - created a 2D heavy rainfall model for the entire federal state, including processed data that could be used directly for the current contract.

The defendant therefore not only offered an unusually high discount (30 %), but also explicitly referred to synergy effects from its preliminary work. The competition then complained that this data was not available to them - although the contracting authority would have had a right of disclosure vis-à-vis the project partner.

Legal assessment: Knowledge advantage in the award procedure as an advantage contrary to public procurement law

The OLG confirmed the decision of the lower court (Saarland Public Procurement Chamber) on the knowledge advantage in the award procedure in key points:

  • Violation of the principle of equal treatment (Section 97 (2) GWB): The competition was distorted because only the defendant had access to processed data, although the defendant (local authority) could have made this data available to other bidders.
  • Not all preliminary work is anti-competitive: Knowledge leads from previous projects are not inadmissible per se. However, it becomes unlawful if these originate from public contracts and the client refuses to provide this information evenly.
  • No "prior knowledge" within the meaning of § 7 VgV solely through software specification: The use of specific software developed by the preferred bidder ("HydroAS 2D") does not automatically constitute inadmissibility, provided there are objective reasons for the specification.
  • Obligation of the client to compensate: As soon as an exclusive knowledge advantage can be traced back to the contracting authority - for example via a ministry - there is an obligation to compensate. This was breached in the specific case.

Conclusion and recommendations: How to protect your opportunities

For public clients:

  • Avoid impermissible competitive advantages. If data from previous projects is available, it must be made accessible to all bidders.
  • Document internal responsibilities. Even if various authorities are involved, it is the legal entity that counts in terms of public procurement law - not the individual department.

For bidders:

  • Ask for relevant data at an early stage. If you are denied access, a complaint must be examined.
  • Pay attention to notes on software specifications. Product neutrality is generally required - exceptions must be objectively justified.
  • Secure your rights in review proceedings. Complaint deadlines pursuant to Section 160 (3) GWB are tight. Pay attention to the form, deadline and content of your complaint - ideally by a lawyer specializing in public procurement law from AVANTCORE RECHTSANWÄLTE accompanied.

AVANTCORE Attorneys at Law - Your contact for public procurement law

As a law firm specializing in public procurement law, we support AVANTCORE RECHTSANWÄLTE in Stuttgart you at the Enforcement of your bidding rights and the legally compliant design of public tenders. Whether a complaint, review proceedings or strategic advice - we stand for competent and assertive support in procurement procedures.

Contact us - for more fairness in competition.