3 Tips for Deal­ing with Dif­fi­cult Bid­ders — The Nag­ger (1)*

They still exist, they nev­er went away, and soon they may become more com­mon again, for instance if pub­lic con­struc­tion activ­i­ty slows down: the nag­gers among bid­ders and con­trac­tors.

What is a nag­ger?

Be hon­est, you know it. You think of down­turned cor­ners of the mouth, admon­ish­ing­ly raised index fin­gers and a rou­tine-sound­ing “But” and “Well”. You think of a head sway­ing slow­ly from left to right and of all the ques­tions that are intro­duced with the eter­nal word “Why”. Already you have an image in mind. The nag­ger.

Pop­u­lar in pro­cure­ment pro­ce­dures and meet­ings of any kind

He likes to speak up at length in pro­cure­ment pro­ce­dures and site meet­ings, he is talk­a­tive, and some­times he even has a sense of humor. As a rule, he is nei­ther mali­cious nor dan­ger­ous to the suc­cess of the project; some­times he is sim­ply right, and one would be hap­py to accom­mo­date him. If only he would not nag so exten­sive­ly and con­stant­ly. The nag­ger (also called com­plain­er) is not a bad per­son, he knows a lot and wants to share this knowl­edge with you, but he does not know how to do all this in a pos­i­tive, affir­ma­tive way.

How does he express him­self in the pro­cure­ment process?

In the award pro­ce­dure, the nag­ger likes to make him­self heard with the sug­ges­tion that some­thing (a cer­tain behav­ior of the cus­tomer, a spec­i­fi­ca­tion in the spec­i­fi­ca­tions, etc.) is “pos­si­bly sub­ject to com­plaint”. How­ev­er, he does not pur­sue any rec­og­niz­able inten­tion with this hint; in par­tic­u­lar, he does not even seem to be con­cerned with chang­ing your mind, per­suad­ing you to give in, etc. He points out a pos­si­ble award­ing author­i­ty. He points out a pos­si­ble vio­la­tion of pro­cure­ment law and at the same time is ful­ly aware that he has not issued a com­plaint. It does not even both­er him. The fight­er, for exam­ple, a com­plete­ly dif­fer­ent type of bid­der and con­trac­tor, will sim­ply com­plain about what both­ers him. Not so the nag­ger. He pos­es a prob­lem on whose occur­rence or non-occur­rence at least he pre­tends to have no influ­ence. He has seen it, of course. But whether and how it is solved is not his busi­ness.

And in the project?

In the meet­ing, the nag­ger is in his ele­ment. He likes to explain things “on the record,” although he does­n’t always make sure that what he has to say is actu­al­ly record­ed. Inci­den­tal­ly, he is indif­fer­ent to the medi­um; he can do it dig­i­tal­ly via Zoom just as well as in a con­fined space in a small con­tain­er office. He often remains silent for a long time and actu­al­ly or only sup­pos­ed­ly lis­tens, pos­si­bly weigh­ing heavy thoughts, until he final­ly starts — some­times intro­duced by a timid­ly raised hand or a ques­tion as to whether his opin­ion is desired, here the char­ac­ters dif­fer­en­ti­ate them­selves — and grum­bles. Unlike the grum­bler, he always main­tains tone and man­ners, but in doing so he always gets on your nerves and those of his col­leagues who are present, whether vol­un­tar­i­ly or under duress.

How best to take him

You will not change the char­ac­ter of the nag­ger. So take him as he is. He must be able and allowed to talk, so let him speak out. Many are sim­ply grate­ful when you lis­ten to them. You may also want to thank them for their input and del­e­gate any result­ing work assign­ments, at least in appear­ance. In indi­vid­ual cas­es, you should also def­i­nite­ly con­sid­er whether there is some­thing to it. Atten­tion, the nag can be an absolute expert, one does not exclude the oth­er. There is only one thing you should not do: seek an open exchange, a con­ver­sa­tion. The nag­ger nags because he nags. He may or may not be right, but he would not be a nag­ger if he were inter­est­ed in the solu­tion. From a legal point of view, the case is even sim­pler: the prospect of a com­plaint is not 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.