10 Con­struc­tion Pro­cure­ment Mis­takes (and How to Avoid Them) — Not Ask­ing for Insight and Thus Know­ing Only Half the Truth (2)*.

You are cer­tain­ly aware of your right to know the prices of the com­pe­ti­tion in con­struc­tion con­tract pro­cure­ment pro­ce­dures. You are (still) allowed to look at the tran­script of the bid open­ing. This applies both above and below the EU thresh­old. There are said to be bid­ders who par­tic­i­pate in pub­lic ten­ders pri­mar­i­ly for this rea­son. When do you ever find out how much oth­er com­pa­nies charge for the same ser­vice?

Legal sit­u­a­tion below the thresh­old

In nation­al con­struc­tion pro­cure­ment pro­ce­dures, you must be “allowed” to inspect the tran­script and its amend­ments. That is, you should make a request. If you request it, the con­tract­ing author­i­ty must inform you imme­di­ate­ly of the names of the bid­ders and the final amounts of the bids read out and recal­cu­lat­ed, as well as the num­ber of sup­ple­men­tary bids after the arith­meti­cal check.

Legal sit­u­a­tion above the thresh­old

Above the EU thresh­old, i.e. in Europe-wide award pro­ce­dures, no appli­ca­tion is even required. Here, the con­tract­ing author­i­ty pro­vides the bid­ders with the afore­men­tioned infor­ma­tion elec­tron­i­cal­ly with­out delay. What is meant here is the so-called com­pi­la­tion of the offers. This is an excerpt — albeit a very impor­tant one — from the min­utes of the bid open­ing. How­ev­er, it is not the entire tran­script of the bid open­ing. In this respect, too, a kind of appli­ca­tion require­ment was smug­gled in: The bid­ders must be “allowed” to inspect the min­utes and their adden­da.

When you should sub­mit the appli­ca­tion

If you are won­der­ing when you should sub­mit the request for inspec­tion or trans­mis­sion, you will find no clear tim­ing reg­u­la­tion in the law. It is con­ceiv­able to make the request in the cov­er let­ter accom­pa­ny­ing the offer. For this, how­ev­er, you would have to use such a cov­er let­ter in the first place. I usu­al­ly advise against this, if only because of the risk of acci­den­tal­ly chang­ing the ten­der doc­u­ments. It seems bet­ter to me to have a stan­dard let­ter ready. And upload this let­ter via the award plat­form one day after the bid open­ing. All you need is a prop­er stan­dard let­ter that cov­ers all con­ceiv­able cas­es and, of course, a prop­er­ly reg­is­tered resub­mis­sion.

Out­look

If this right will be pre­served for you? We’ll see what the future holds. There is no com­pa­ra­ble insti­tute for pro­cure­ment of goods and ser­vices. The crit­i­cism in the case of con­struc­tion con­tracts has been around for a long time. There­fore, you should observe the devel­op­ment of the legal sit­u­a­tion. Not that you will make the request one day, although your right of inspec­tion has already been delet­ed from the VOB/A.

*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.