Open-house procedures and price regulation: what does the ruling of the Higher Regional Court (OLG) Köln on the applicability of Price Ordinance 30/53 and the scope of damages claims mean for practice?

The Higher Regional Court (OLG) Köln has now, by judgment of 15.05.2025, Az. 18 U 97/23 clarified under which conditions award obligations exist in open-house procedures, what limits apply to the assertion of restitution in kind – and when damages claims are reduced to lost profit.

For classification: price-law pitfalls in open-house procedures

The procurement of important protective goods such as FFP2 masks in the pandemic context forced the public sector to act flexibly in previously unknown dimensions. The so-called open-house procedure has become the particular focus. In this type of procedure, there is no competitive selection among bidders; instead, every bidder can demand contract conclusion upon fulfilment of certain conditions. However, even in such procedures, strict legal framework conditions apply – in particular the price regulation of Price Ordinance 30/53 (former version).

The open-house procedure is a procurement model with special design under public procurement law, which is primarily used for time-critical or widely available services – such as in pandemic procurement or in the pharmaceutical sector.

In contrast to classical procurement procedures (for example open or restricted procedures pursuant to GWB and VgV), there is no competitive selection among bidders. Instead, the public contracting authority publishes general terms and conditions, fixed prices and durations to which any number of bidders can join within a specified period can join. Every bidder who meets the conditions receives an award – there is no selection decision, but rather an automatic process.

In the legal sense, it is often an "invitatio ad offerendum": the contract is concluded only when the contracting authority expressly issues the award – despite the absence of a selection decision the award is legally constitutive.

Typical areas of application:

• Pharmaceutical rebate contracts (in particular health insurance funds)
• Pandemic-related procurement (masks, rapid tests)
• Supply of medical devices in shortage situations

It is legally disputed whether the procedure is fully exempt from public procurement law. The Court of Justice of the European Union (EuGH) (judgment of 02.06.2016, C-410/14 – Falk Pharma) decided that no "public contract" within the meaning of the directive at that time exists – nevertheless the principles of equal treatment and transparency as well as, if applicable, sector-specific rules continue to apply.

Price regulation in turn governs the permissible pricing in public contracts – in particular when no functioning competition exists or prices cannot be freely negotiated. It is intended to prevent excessive prices, protect the treasury and ensure a fair remuneration.

Legal bases of price regulation

The central legal source for price regulation in public contracts was, until 31.03.2022, the Regulation PR No. 30/53 on Prices for Public Contracts ("PreisV 30/53"). Since 01.04.2022, it continues to be valid in modified form.

Essential provisions of PreisV 30/53 former version:

• § 1 Abs. 1 PreisV 30/53 a.F.: application to all supply, service and construction services with respect to public contracting authorities.
• § 1 Abs. 3 PreisV 30/53 a.F.: price agreements are void insofar as they violate the Regulation.
• § 2 Abs. 2 PreisV 30/53 a.F.: exemption possible for services in competition.
• § 4 Abs. 1 PreisV 30/53 a.F.: the standard is generally the customary market price – in the absence of a market price, § 5 applies.
• § 5 PreisV 30/53 a.F.: price determination on the basis of cost price plus reasonable profit (so-called cost price), if no market price can be determined.

The Higher Regional Court (OLG) Cologne clarified that this regulation also applies to open-house procedures if no use is made of an exemption pursuant to § 2 Abs. 2. The contracting authority cannot circumvent the right to set prices merely by choosing the procedure.

What was the case about exactly? – Mask supply, award obligation and unperformed contracts

In spring 2020, the public sector – specifically the Federal Ministry of Health – initiated an open-house procedure to procure FFP2 and surgical masks. The plaintiff thereupon submitted several offers, two of which – concerning, inter alia, 1 million FFP2 and 5 million surgical masks – were awarded. The remaining offers (including an offer for 4 million FFP2 masks) received no response. The plaintiff was ultimately unable to perform the awarded contracts, but claimed damages for the non-awarded offer and demanded compensation for lost profits in excess of €12 million.

The Regional Court (LG) Bonn dismissed the action. In the appeal proceedings, the plaintiff continued to pursue his claims for performance, or alternatively for damages.

The decision of the Higher Regional Court (OLG) Cologne

a) No purchase contract due to lack of award

The Higher Regional Court clarifies: A contract in an open-house procedure does not come into being upon submission of the offer. The publication of the conditions is not an "offerta ad incertas personas", but merely an "invitatio ad offerendum", i.e. a call for offers. The contract comes into being only with the express award. A contract sui generis was also rejected.

b) However: Pre-contractual obligation with duty of performance

Nevertheless, the court affirms a pre-contractual obligation pursuant to § 311 Abs. 2 BGB. Due to the publicly declared obligation to accept all formally proper offers, there was an obligation to grant an award. The failure to do so constitutes a breach of duty – also because the offer for 4 million FFP2 masks was formally and procedurally proper and substantively contract-compliant.

c) No restitution claim due to prohibition of unjust enrichment

Of particular practical relevance: The court rejects a claim for restitution in kind (delivery in exchange for payment). Reason: The law of damages prohibition of unjust enrichment pursuant to § 249 BGB precludes the plaintiff from now – years later – realizing a significantly higher profit at massively reduced purchase prices, as would have been possible in April 2020. The plaintiff would thus have derived an unjustified advantage from the breach of duty.

d) Only compensation for lost profit – limited by PreisV 30/53 a.F.

The plaintiff instead receives damages in the amount of lost profit. In doing so, the court does not base its calculation on the agreed (price-law-compliant) amount of €4.50 per mask, but rather on a permissible price of €1.3545 (determined from cost price plus 5% profit surcharge pursuant to § 5 PreisV 30/53 a.F.). The resulting profit from this amounts to only €0.0645 per mask – for 4 million masks therefore €258,000.

Significance of the decision for contracting authorities and bidders

This decision has significant practical implications for the design and conduct of open-house procedures as well as for dealing with price specifications:

For public contracting authorities:

• Even in open-house procedures, the right to set prices remains applicable – the choice of procedure does not exempt from compliance with PreisV 30/53 a.F.
• Breaches threaten claims for damages, even if no award was granted.
• The possibility of partial invalidity of contracts (§ 1 Abs. 3 PreisV) is to be actively examined and may be advantageous in litigation.

For bidders:

• Unclear or duplicate submissions of offers can lead to misunderstandings – professionally structured communication is essential.
• Damages for lack of award can realistically only be directed towards lost profit – and this is subject to price-law limitation.
• Delivery capability must be plausibly demonstrated – the submission must demonstrate concrete purchasing options.

Our recommendation

a precise and legally sound design of open-house procedures with clear award rules and examination of price specifications for PreisV compliance. Comprehensive documentation of award decisions secures procurement procedures from a legal standpoint.We recommend to public contracting authorities

Bidders for public contracts should examine before submitting an offer whether their calculations comply with public price law. An award can certainly be enforceable – but the economic return may be drastically reduced by price law.

Do you require legally sound advice on the design or conduct of open-house procedures?
Our firm specializing in public procurement law AVANTCORE Rechtsanwälte in Stuttgart advises you comprehensively, competently and with an eye to economic and strategic aspects.

Contact us now – we represent your interests in and out of court.