10 mis­takes in con­struc­tion awards (and how to avoid them) — Appoint­ing new or dif­fer­ent per­sons in the cur­rent award pro­ce­dure (9)*.

Coop­er­a­tion between com­pa­nies is always fraught with prob­lems in pub­lic pro­cure­ment pro­ce­dures. One par­tic­u­lar­ly sus­cep­ti­ble con­stel­la­tion is the ear­ly nam­ing of project part­ners, which turns out to be no longer cor­rect in the course of the award pro­ce­dure.

Your part­ner no longer wants or can

You want to work with a very spe­cif­ic com­pa­ny, either as a sub­con­trac­tor or as a bid­ding con­sor­tium, or per­haps just as a sup­pli­er or equip­ment rental com­pa­ny. The pre­lim­i­nary talks go well, but then some­thing changes. Maybe it’s about mon­ey, maybe it’s about capac­i­ty. In any case, it turns out that you no longer want to or can work togeth­er as you had orig­i­nal­ly intend­ed. The prob­lem: You have already indi­cat­ed to the con­tract­ing author­i­ty in the award pro­ce­dure that you will coop­er­ate with this third par­ty, and prob­a­bly also exact­ly how.

What does that mean: coop­er­a­tion indi­cat­ed?

It is pos­si­ble that you have sub­mit­ted the bid or only the appli­ca­tion for par­tic­i­pa­tion as a bid­ding con­sor­tium. In this case, the bid­der is not your com­pa­ny, but the bid­ding con­sor­tium. Or you may have iden­ti­fied cer­tain ser­vices as sub­con­trac­tor ser­vices. In oth­er words, you have indi­cat­ed that you do not want to or are not able to per­form these ser­vices in your own com­pa­ny. Instead, they are to be pro­vid­ed by third par­ties, i.e. these part­ner com­pa­nies, which are now no longer will­ing or able to do so.

How do I get out of this?

It depends. Per­haps you have made the dec­la­ra­tions as a bid­ding con­sor­tium, but have not yet explained in any way how the oblig­a­tions are divid­ed up with­in the bid­ding con­sor­tium — and can “recap­ture” your sup­posed ex-part­ner by means of a rea­son­able bid­ding con­sor­tium or ARGE con­tract. And if it is a sub­con­trac­tor, have you already giv­en his name? In each indi­vid­ual case, it is nec­es­sary to exam­ine exact­ly how the prob­lem can be solved. And do it by lawyer. Do not do it your­self! Because the sword of Damo­cles of the exclu­sion of the offer or par­tic­i­pa­tion request hangs over you, e.g. because of sub­se­quent changes to the offer or par­tic­i­pa­tion request. The solu­tion does not always (in fact, extreme­ly rarely) lie in the award pro­ce­dure. Often, a solu­tion can be found on a con­trac­tu­al lev­el — with the third par­ty.

*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.