10 Con­struc­tion Con­tract­ing Mis­takes (and How to Avoid Them) — Accept­ing a Hid­den Prod­uct Speci­fici­ty (8)*.

You know the sit­u­a­tion: You browse through the spec­i­fi­ca­tions, and the longer you read them, the clear­er it becomes to you what prod­ucts the client wants but has not explic­it­ly writ­ten into them. Annoyed, you put the per­for­mance spec­i­fi­ca­tion aside. Because you can not or do not want to build with these prod­ucts, for tech­ni­cal or even eco­nom­ic rea­sons.

Go into the Clinch

In doing so, you should do the exact oppo­site. Hid­den prod­uct spec­i­fi­ca­tion, i.e. prod­uct spec­i­fi­ca­tions that are not explic­it­ly estab­lished but rather result from the inter­ac­tion of all indi­vid­ual spec­i­fi­ca­tions and thus qua­si tac­it­ly, are very com­mon. And (not only) accord­ing to our con­vic­tion always (!) inad­mis­si­ble. So if you want to defend your­self, for­mu­late a rep­ri­mand — prefer­ably with the help of a lawyer.

And what exact­ly do you want me to con­test?

How about this: The pro­vi­sion is con­trary to pro­cure­ment law because it is non-trans­par­ent. It is con­cealed and cov­ered up that in real­i­ty the ten­der­ing process is not prod­uct-neu­tral, but prod­uct-spe­cif­ic. This is also like­ly to vio­late the prin­ci­ples of equal treat­ment and com­pe­ti­tion, which you could also com­plain about. In addi­tion, there are a few pro­vi­sions of the VOB/A or EU VOB/A that could also be vio­lat­ed.

But what do I get out of that?

If the client “opens” the ten­der on your com­plaint, you may be able to offer the prod­ucts that you your­self pre­fer. Par­tic­u­lar­ly since the com­plaint com­mu­ni­ca­tion with the client may open up com­plete­ly new per­spec­tives for you. All of a sud­den, an unin­ter­est­ing ten­der turns into a real win. And if the con­tract­ing author­i­ty does not coop­er­ate, you can make a quick call to the con­tract review author­i­ties. The chances of suc­cess are good with a con­cealed prod­uct speci­fici­ty. Always keep in mind: Accord­ing to a BGH deci­sion from 2011, the con­tract­ing author­i­ty must at least reim­burse the attorney’s fees in accor­dance with the Ger­man Attorney’s Fees Act (Recht­san­waltsvergü­tungs­ge­setz) if the com­plaint is well-found­ed. And he does it most of the time. Often also with­out grum­bling.

*This legal tip is not a sub­sti­tute for legal advice in indi­vid­ual cas­es. By its very nature, it is incom­plete, nor is it spe­cif­ic to your case, and it also rep­re­sents a snap­shot in time, as legal prin­ci­ples and case law change over time. It can­not and does not cov­er all con­ceiv­able con­stel­la­tions, serves enter­tain­ment and ini­tial ori­en­ta­tion pur­pos­es and is intend­ed to moti­vate you to clar­i­fy legal issues at an ear­ly stage, but not to dis­cour­age you from doing so.