10 con­struc­tion con­tract­ing mis­takes (and how to avoid them) — Not ask­ing for infor­ma­tion about why your bid was reject­ed (3)*.

You have looked at the tran­script and know the prices of the com­pe­ti­tion. And you are pleased, because your offer is in first place. Then the punch in the stom­ach: The con­tract is award­ed to some­one else. You ask your­self (under­stand­ably) why and why not.

Legal sit­u­a­tion below the thresh­old

In nation­al con­struc­tion pro­cure­ments, you can ask for the rea­sons why your bid was not con­sid­ered in text form. In addi­tion, you have a right to know who is the for­tu­nate one and has been grant­ed the con­tract. And in par­tic­u­lar, of course, what the “fea­tures and ben­e­fits” of this bid are. All this in no lat­er than 15 days after receipt of your request. So that the client does not get bored.

Legal sit­u­a­tion above the thresh­old

The sit­u­a­tion is sim­i­lar above the thresh­old. The reg­u­la­tion in the VOB/A, as of May 2020, is only some­what more dif­fer­en­ti­at­ed. Here, again, the ques­tion is, of course, how deep your right of dis­clo­sure goes. Does the con­tract­ing author­i­ty have to put you in a posi­tion to check the competitor’s bid? That would­n’t be unin­ter­est­ing, don’t you think? It does­n’t real­ly need to be men­tioned, but the client (unless he’s crazy, which is usu­al­ly not the case) and your com­pe­ti­tion won’t like that very much. After all, nei­ther wants to be con­trolled by you. So the dis­pute is about how far your right to infor­ma­tion extends. Which infor­ma­tion are you allowed to ask for, and which are you no longer allowed to ask for?

Busi­ness advice

You should always make use of your right to infor­ma­tion. Always. If you sus­pect that some­thing has gone wrong, you should jus­ti­fy the claim as well as pos­si­ble, i.e. include as much infor­ma­tion as pos­si­ble. How­ev­er, be care­ful not to over­do it! You are not enti­tled to con­fi­den­tial infor­ma­tion, for exam­ple, and any­one who nev­er­the­less attempts to obtain such infor­ma­tion may be sub­ject to all kinds of extreme­ly neg­a­tive con­se­quences (e.g. [ not exhaus­tive­ly! ] Sec­tion 124 (1) No. 9 GWB). Ulti­mate­ly, there­fore, one thing helps above all: a resub­mis­sion and a legal­ly clean sam­ple let­ter that has been care­ful­ly adapt­ed to your spe­cif­ic award.

*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.