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.