02. cur­rent case law: admis­si­bil­i­ty of an over­all award, require­ments for the doc­u­men­ta­tion of an over­all award, sup­ply of spe­cial­ist soft­ware

Guid­ing prin­ci­ples

The sub­ject is the pro­cure­ment of four soft­ware appli­ca­tions from one man­u­fac­tur­er in one over­all lot.
The con­tract­ing author­i­ty shall con­tin­u­ous­ly doc­u­ment the pro­cure­ment pro­ce­dure in text form from the begin­ning, to the extent nec­es­sary to jus­ti­fy mate­r­i­al deci­sions at each stage of the pro­cure­ment pro­ce­dure.
This means that he writes down his assess­ment of the pro­cure­ment need, the type of pro­ce­dure and the gen­er­al con­di­tions (e.g. with­out lot split­ting) before pub­li­ca­tion of the con­tract notice.
The doc­u­men­ta­tion must of itself indi­cate the time of its cre­ation.
An over­all award may only be made in excep­tion­al cas­es. An excep­tion­al case may be opened if eco­nom­ic or tech­ni­cal rea­sons require that sev­er­al par­tial or spe­cial­ized lots be award­ed togeth­er. After deter­min­ing the sub­ject of the pro­cure­ment, the con­tract­ing author­i­ty must, pur­suant to Sec­tion 97 para. 4 GWB in a com­pre­hen­sive weigh­ing of inter­ests with the fun­da­men­tal require­ment of award­ing spe­cial­ized lots. The required con­sid­er­a­tion and jus­ti­fi­ca­tion of the deci­sion shall be doc­u­ment­ed. This includes dis­cussing the advan­tages of award­ing con­tracts in batch­es and not just their dis­ad­van­tages.
If the over­all award is based on a lack of tech­ni­cal com­pat­i­bil­i­ty among sev­er­al man­u­fac­tur­ers, con­crete expla­na­tions of the alleged tech­ni­cal com­pat­i­bil­i­ty con­sid­er­a­tions must be avail­able in par­tic­u­lar. If it is based on addi­tion­al per­son­nel expens­es, these must be specif­i­cal­ly quan­ti­fied and pre­sent­ed in a com­pre­hen­si­ble man­ner. What is need­ed here is a care­ful analy­sis of needs with a com­par­a­tive cal­cu­la­tion show­ing what actu­al expense will be incurred and what addi­tion­al expense will result from lot split­ting and what addi­tion­al expense is then con­sid­ered unrea­son­able.
If it is argued that the cus­tomers of the con­tract­ing author­i­ty only accept a solu­tion from a sin­gle source, it must be con­sid­ered whether the cus­tomers in turn have alter­na­tive options, because as con­tract­ing author­i­ties they are also bound by the ARC.
If the over­all award is based on sev­er­al argu­ments, one of which can­not be ver­i­fied, it can­not be estab­lished that the deci­sion would have been tak­en by the con­tract­ing author­i­ty in the same way even if this strand of rea­sons had been omit­ted.

VK Baden-Würt­tem­berg, deci­sion of 27.01.2022 — 1 VK 63/21, BeckRS 2022, 24701 (not legal­ly bind­ing; over­ruled by the deci­sion repro­duced below).