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?
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.
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?
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.