A bike-sharing tender that violates the transparency requirement in the procurement procedure is set aside by the BayObLG.

Landmark Decision of the Bavarian Supreme Court (BayObLG) of 05.08.2025 (Verg 2/25) on the Transparency Requirement in Public Procurement Law

Classification and Significance of the Decision

The Bavarian Supreme Court (BayObLG) has rendered a decision of 05.08.2025 (Verg 2/25) a landmark decision for public procurement law. At the centre is the transparency requirement under § 97 Abs. 1 GWB, which is one of the fundamental principles of public procurement law and is anchored in Union law.

What does the transparency requirement demand?

Public contracting authorities must ensure that all conditions of the procurement procedure are clear, unambiguous and consistent so that an average competent bidder acting with ordinary care can recognise:

• what services are to be performed,
• what requirements must be met as a matter of necessity, and
• what criteria are decisive for the award.

The BayObLG makes it clear: if these principles are not observed, not only is there a risk of excluding individual bidders from the tendering process – rather, in some circumstances, the entire procedure must be set aside, i.e. brought back to a state that existed before the complained-of violation. This has significant repercussions on the practice of complex tenders, especially for long-term, grant-dependent projects such as the establishment of regional bike-sharing systems.

What exactly was the case about?

A consortium of over 30 municipalities and a regional public transport operator issued a tender in 2024 in a Europe-wide negotiated procedure with a call for competition for the establishment and operation of a uniform bike-sharing system.

Essential key points:

• Contract duration until 2030, extension option until 2032
• ramp-up phase with over 6,700 bicycles (part of which will pass into the ownership of individual contracting authorities)
• technical requirements for bicycles (lighting, QR codes, locking systems, GNSS positioning)
• operator contract with mandatory requirements, including "same design" for owned and rental bicycles

Two main bidders remained in the procedure:

• Applicant: incumbent operator
• Party to the proceedings: new company

The contracting authority intended to award the contract to the party to the proceedings. The applicant objected, inter alia, to:

• non-conformity of the bicycles offered with mandatory requirements
• lack of identical design
• deficient price review and doubtful suitability

The South Bavarian Procurement Chamber merely ordered further clarification of the tender. Against this, the applicant filed an appeal for immediate review and requested the exclusion of the party to the proceedings.

What does the BayObLG say?

The BayObLG partially overturned the Chamber decision and ruled that the procurement procedure must be set aside to the state before submission of the final tenders. The key considerations are:

1. Admissibility of the appeal

Although the Chamber decision appeared on the face of it to comply with the request, the BayObLG found that there was a legitimate complaint: the applicant actually pursued the exclusion of the party to the proceedings, which was not achieved.

2. Transparency requirement under § 97 Abs. 1 GWB

• Contracting authorities must set out all conditions and modalities clearly and unambiguously (with reference to EuGH, C-298/15).
• The transparency requirement also serves the purpose of equal treatment of bidders.
• In the case of objective ambiguities – here regarding the identical design and delivery capability of the bicycles – exclusion of a tender is impermissible; rather, the procedure must be re-opened.

3. Lack of clarity in the description of performance

• Different interpretations of the contractual documents
• contradictory communication in negotiation rounds
• unclear specifications for system start-up and transfer of ownership

Result: Bidders could not determine which wheels are to be considered compliant and how 'same design type' is to be interpreted.

4. Suitability and price assessment

• The applicant criticised the suitability of the co-defendants and erroneous price assessment.
• The court confirmed certain deficiencies, however no mandatory grounds for exclusion.
• Primary procurement law violation remains the breach of the transparency requirement.

5. Consequence

• Reversion of the procedure before submission of final offers
• Revision of the procurement documents
• renewed submission of offers by all bidders

Practical note and recommendation

The decision has signal effect for contracting authorities and bidders:

• Contracting authorities:
• • Must formulate performance requirements completely, consistently and verifiably.
  • In the event of changes during negotiations, care must be taken to ensure uniform communication and adaptation of procurement documents.
  • Failure to do so risks court reversion with project delays and subsidy fund risks.
• Bidders:
• • Should challenge unclear requirements at an early stage (§ 160 Abs. 3 GWB) to protect their rights.
  • Even if grounds for exclusion are not immediately demonstrable, a well-founded suspicion is sufficient for a permissible challenge.
  • Where there is a lack of transparency and resulting breaches of the transparency requirement, the entire procedure may be overturned – not just individual offers.

Legal advice recommended

AVANTCORE Rechtsanwälte in Stuttgart advises contracting authorities on the legally compliant preparation of procurement documents and supports bidders in review proceedings before procurement chambers and Higher Regional Courts (OLG).

The decision demonstrates: Defective transparency costs time, money and legal certainty. With our expertise you avoid procurement errors and secure your chances in competition.

With the subject of transparency in Vergaberecht we have already dealt this year:

No hidden risks in public construction contracts! – Transparency as a shield for bidders in procurement proceedings