Social and envi­ron­men­tal con­tract per­for­mance con­di­tions

Var­i­ous legal oblig­a­tions apply to con­trac­tors, includ­ing gen­er­al require­ments and spe­cif­ic con­di­tions. Social aspects such as the employ­ment of the long-term unem­ployed or the pro­mo­tion of the envi­ron­ment can be one such con­di­tion.

Legal basis

The gen­er­al legal oblig­a­tions apply to every pub­lic sec­tor con­trac­tor, see Sec­tion 128 (1) GWB. How­ev­er, there are also so-called “con­tract per­for­mance con­di­tions” (often also referred to as “per­for­mance con­di­tions”).

The con­tract­ing author­i­ty may lay down per­for­mance con­di­tions inso­far as these are relat­ed to the sub­ject mat­ter of the con­tract and inso­far as the con­di­tions result from the con­tract notice or the pro­cure­ment doc­u­ments. They may include, in par­tic­u­lar, eco­nom­ic, inno­va­tion-relat­ed, envi­ron­men­tal, social or employ­ment con­cerns or the pro­tec­tion of con­fi­den­tial infor­ma­tion. The con­tract­ing author­i­ty can there­fore use these con­di­tions to pro­mote strate­gic objec­tives.

A con­di­tion is linked to the sub­ject mat­ter of the con­tract in accor­dance with Sec­tion 127 (3) ARC if the con­di­tion “relates to process­es in con­nec­tion with the man­u­fac­ture, pro­vi­sion or dis­pos­al of the ser­vice, to trade in the ser­vice or to anoth­er stage in the life cycle of the ser­vice.” The need for a link between the con­di­tion and the sub­ject mat­ter of the con­tract fol­lows from the con­sid­er­a­tion that the con­tract­ing author­i­ty should not impose gen­er­al require­ments on the com­pa­ny for its cor­po­rate pol­i­cy and busi­ness orga­ni­za­tion.

Exam­ples of exe­cu­tion con­di­tions

There are many cas­es of exe­cu­tion con­di­tions. Some­times these are, for exam­ple, pub­lic law approval require­ments or sim­i­lar. Often, how­ev­er, spec­i­fi­ca­tions, par­tic­u­lar­ly those of the state leg­is­la­tors, are also imple­ment­ed in the award pro­ce­dures. We have com­piled a few exam­ples:

1. Con­di­tions that oblige the con­trac­tor to employ more (long-term) unem­ployed per­sons in the exe­cu­tion of the spe­cif­ic con­tract
2. Con­di­tions that call for mea­sures to pro­mote equal­i­ty between women and men in the work­place and to increase the par­tic­i­pa­tion of women in work­ing life
3. Con­di­tions that take into account the spe­cial needs of peo­ple with dis­abil­i­ties
4. Con­di­tions for reduc­ing CO2 emis­sions dur­ing order exe­cu­tion

Delim­i­ta­tion of exe­cu­tion con­di­tions, award cri­te­ria and selec­tion cri­te­ria

It is very impor­tant for the award pro­ce­dure whether a spec­i­fi­ca­tion is a per­for­mance con­di­tion, an exclu­sion cri­te­ri­on or a suit­abil­i­ty require­ment. This is because the legal require­ments dif­fer. To give an exam­ple: While the con­tract­ing author­i­ty can and must car­ry out the suit­abil­i­ty test in full and may, under cer­tain cir­cum­stances, be shown extreme­ly detailed evi­dence on the basis of which it makes a prog­nos­tic affir­ma­tion of the bid­der’s suit­abil­i­ty, it has much less lee­way when it comes to con­tract per­for­mance con­di­tions. Here, he often has no choice but to rely on the bid­der’s assur­ances.

How we help you

As a con­tract­ing author­i­ty, it is often unclear what is “still pos­si­ble”. And what is sim­ply inad­mis­si­ble. We orga­nize your pro­cure­ment for you.

Bid­ders and appli­cants, on the oth­er hand, are some­times con­front­ed with con­cep­tu­al con­fu­sion. Espe­cial­ly when unful­fil­l­able ver­i­fi­ca­tion require­ments are imposed, it is impor­tant to clas­si­fy exact­ly whether, for exam­ple, a suit­abil­i­ty require­ment real­ly relates to suit­abil­i­ty or is not mere­ly a con­di­tion of exe­cu­tion.

For a non-bind­ing inquiry, please con­tact one of our con­tact per­sons direct­ly by phone or e‑mail or use the con­tact form.