10 Mis­takes in Con­struc­tion Con­tracts (and How to Avoid Them) — “Tear” Dead­line for Sub­mis­sion of Proof of Suit­abil­i­ty (4)*.

Your (non-pre­qual­i­fied) com­pa­ny has appar­ent­ly been short­list­ed. Obvi­ous­ly, because the con­tract­ing author­i­ty sud­den­ly wants to see all kinds of proofs from you, relat­ed to your orga­ni­za­tion, your law­ful­ness and reli­a­bil­i­ty, etc. They get into a rush and hur­ry. Could­n’t this have been known in advance?

Legal basis

If this is your expe­ri­ence, you are often still in the suit­abil­i­ty test­ing stage. In this respect, the client must check, for exam­ple, whether your com­pa­ny is eco­nom­i­cal­ly-finan­cial­ly and tech­no­log­i­cal­ly-pro­fes­sion­al­ly capa­ble of exe­cut­ing the order. In prin­ci­ple, it may stip­u­late that self-dec­la­ra­tions are suf­fi­cient for indi­vid­ual dis­clo­sures. How­ev­er, these self-dec­la­ra­tions usu­al­ly serve only as pre­lim­i­nary evi­dence. They shall be con­firmed by the bid­ders whose bids are short­list­ed by appro­pri­ate cer­tifi­cates issued by the com­pe­tent author­i­ties. In some cas­es, it is even explic­it­ly defined who is such a bid­der, i.e. whose bid has been short­list­ed. For exam­ple, in the open pro­ce­dure, it is the bid that is to be award­ed the con­tract.

Tim­ing require­ments

In most cas­es, the client will not sim­ply ask you to pro­vide evi­dence in the near future. He will — by no means always, but in gen­er­al — set a dead­line or at least request an “imme­di­ate” sub­mis­sion. Many con­tract­ing author­i­ties are guid­ed by the 6‑day rule of Sec­tion 16a (4) sen­tence 2 EU VOB/A or Sec­tion 16a (4) sen­tence 2 VOB/A 1st sec­tion. Accord­ing to this, the peri­od of grace should not exceed six cal­en­dar days. How­ev­er, the ques­tion aris­es as to how bind­ing “shall” is in indi­vid­ual cas­es. Anoth­er ques­tion is whether this rather strict dead­line (six days is not much, espe­cial­ly if there is a week­end in between) should be applied at all. After all, the proofs are not request­ed sub­se­quent­ly, but for the first time. The sit­u­a­tion may be dif­fer­ent again if, for exam­ple, the con­tract­ing author­i­ty express­ly states in the announce­ment or invi­ta­tion to ten­der that it will allow six days for the pro­vi­sion of evi­dence. But have the indi­vid­ual items of evi­dence that are now to be sub­mit­ted been defined with suf­fi­cient clar­i­ty and deter­mi­na­tion? And what actu­al­ly applies if you miss the dead­line?

Advice

In con­clu­sion, one thing above all is true: There is a lot that is unclear here. Nev­er­the­less, always pay atten­tion to the exact proof require­ments and, of course, also the dead­line that the client requires to be observed. After all, who (apart from lawyers) wants a dis­pute? Vio­la­tions of dead­lines in award pro­ce­dures usu­al­ly have very neg­a­tive con­se­quences (first and fore­most: exclu­sion of bids). At the same time, how­ev­er, the fol­low­ing also applies: no bid­der should accept exclu­sion, e.g., because of an alleged­ly bro­ken dead­line, with­out a lawyer’s exam­i­na­tion.

If you see that cer­tain ver­i­fi­ca­tion require­ments, which may even be dif­fi­cult for you to ful­fill, will be com­ing your way, it is best to obtain the rel­e­vant ver­i­fi­ca­tions ear­ly on. Do not wait until the client’s request, which is usu­al­ly sub­ject to a dead­line, flut­ters through the door. If, excep­tion­al­ly, you are unable to meet the dead­line either through good prepa­ra­tion or by act­ing quick­ly, con­sid­er apply­ing for an exten­sion of the dead­line and, if nec­es­sary, also a com­plaint.

*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.