10 mis­takes in con­struc­tion con­tracts (and how to avoid them) — Des­ig­nate a non-com­pa­ra­ble ref­er­ence ser­vice (5)*.

Only those who have ref­er­ences have the nec­es­sary expe­ri­ence. This is one of the beliefs par excel­lence in pub­lic pro­cure­ment. It is by no means always true, but it is quite often. So you bet­ter not vio­late it!

What does the VOB/A say?

The fol­low­ing applies to nation­al and EU-wide awards: As a rule, the con­tract­ing author­i­ty may require you to pro­vide evi­dence of ref­er­ence ser­vices from the last up to five years. Some­times it may be based on a longer peri­od. These ref­er­ence ser­vices must be com­pa­ra­ble to the ten­dered ser­vice. Whether or not this is the case is some­thing the client usu­al­ly only deals with once your offer has been short­list­ed.


A com­mon point of con­tention is com­pa­ra­bil­i­ty. Some clients (and plan­ners) han­dle this cri­te­ri­on some­what more strict­ly, oth­ers some­what more lax­ly. Some­times there are spec­i­fi­ca­tions in the con­tract notice or else­where as to exact­ly what the ref­er­ence ser­vice must be. Some­times the client is silent, but then comes to the con­clu­sion in the eval­u­a­tion that only ser­vices should be com­pa­ra­ble where the ham­mer fell from the bench at the back left dur­ing the lunch break at the same time as planned in the ten­dered con­tract. A neg­a­tive sur­prise for some bid­ders.

Sit­u­a­tion of the bid­der

Some bid­ders have done every­thing x times and are suit­able in every respect. How­ev­er, even these bid­ders occa­sion­al­ly make avoid­able mis­takes: they sub­mit ref­er­ences that “don’t fit.” Or, they may des­ig­nate their PQ num­ber, but not ensure that the PQ direc­to­ry also knows about the many com­plex jobs they have com­plet­ed in pre­vi­ous years.

Oth­er bid­ders sus­pect from the out­set that things could get tight. Maybe they haven’t been on the mar­ket that long. Per­haps they only have expe­ri­ence with a sin­gle design so far — but not with the design (pos­si­bly) required in the ten­der.

Busi­ness advice

If you belong to the for­mer group, first ques­tion your own assump­tion. Have you real­ly done it all x num­ber of times, and essen­tial­ly as adver­tised? If you can still say “yes” in good con­science, but still don’t know exact­ly which project(s) from this col­or­ful vari­ety you should ulti­mate­ly name, then you could — in a time­ly man­ner — ask an intel­li­gent, cor­rect­ly word­ed bid ques­tion. Also, you could check — in time — what you have report­ed to the PQ direc­to­ry and what you have not.

If you belong to the sec­ond group, you need to think very care­ful­ly about whether you ask any­thing at all. Some­times it is bet­ter to remain silent. Here — among oth­er things — what the client real­ly expects plays a role. To give an exam­ple: Has it defined min­i­mum require­ments for com­pa­ra­bil­i­ty? Explic­it­ly or pos­si­bly only con­clu­sive­ly?

If you have any ques­tions, please send us an e‑mail (info@abante.eu) or sim­ply call us at 0341 910 28405.

*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.

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