Knowledge advantage in public procurement procedures – when does inequality make competition unfair?

In public procurement procedures, equal opportunities should prevail. But what happens when a bidder possesses exclusive information through earlier project involvement, which impermissibly improves its competitive position through a knowledge advantage in the procurement procedure?

This central question was precisely what the recent order of the Higher Regional Court (OLG) Saarbrücken (pronounced)Beschluss vom 07.05.2025 – 1 Verg 1/25dealt with. The court had to clarify whether the award of contract to an offer is lawful if the bidder in question enjoys a substantial advantage over its competitors through project-related prior knowledge via a knowledge advantage in the procurement procedure – and the contracting authority fails to compensate for this.

What was the issue? Research project as a gateway in the procurement procedure

The subject matter of the proceedings was a contract for the preparation of flood hazard maps in Saarland. A bidder (the later party joined) received the award of contract although it had considerable preliminary work from an earlier research project. There, at the behest of the Saarland Ministry of the Environment, it had prepared a 2D heavy rainfall model for the entire federal state, including processed data that could be directly used for the current contract.

The party joined therefore not only offered an unusually high price discount (30 %), but explicitly referred to synergy effects from its preliminary work. The competing bidders then objected that they did not have access to this data – although the public contracting authority would have had a legal claim against the project partner to disclose it.

Legal assessment: Knowledge advantage in the procurement procedure as a violation of procurement law

The OLG confirmed the decision of the lower instance (Procurement Chamber Saarland) on the knowledge advantage in the procurement procedure on central points:

• Violation of the principle of equal treatment (§ 97 Abs. 2 GWB):The competition was distorted because only the party joined had access to processed data, although the respondent (territorial authority) could have made this data accessible to other bidders.
• Not every preliminary work is anti-competitive:Knowledge advantages from earlier projects are not automatically impermissible. It becomes unlawful, however, if they derive from public contracts and the contracting authority refuses to make this information equally available.
• No 'prior involvement' within the meaning of § 7 VgV solely through software specification:The use of specific software ('HydroAS 2D') developed by the preferred bidder does not give rise to automatic impermissibility, provided there are objective reasons for the specification.
• Obligation of the contracting authority to compensate:As soon as an exclusive knowledge advantage is attributable to the public contracting authority – for instance through a ministry – there is an obligation to compensate. This was breached in the present case.

Conclusion and recommendations: How to protect your chances

For public contracting authorities:

• Avoid impermissible competitive advantages.If data from earlier projects exist, 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 procurement law terms – not the individual department.

For bidders:

• Request relevant data at an early stage.If you are denied access, you should consider filing an objection.
• Pay attention to indications of software specifications.Product neutrality is generally required – exceptions must be objectively justified.
• Protect your rights in the review procedure.Objection deadlines pursuant to § 160 Abs. 3 GWB are tight. Pay attention to form, deadline and content of your objection – ideally accompanied by a lawyer specialising in procurement law fromAVANTCORE Rechtsanwälte.

AVANTCORE Rechtsanwälte – Your contact for procurement law

As a law firm specialising in procurement law,AVANTCORE Rechtsanwältesupports you in Stuttgart with theenforcement of your bidder rights and legally compliant design of public calls for tender. Whether objection, review procedure or strategic advice – we stand for competent and effective support in the procurement procedure.

Contact us – for greater fairness in competition.