Con­struc­tion of a park­ing guid­ance sys­tem: con­struc­tion or ser­vice con­tract? — Bay­ObLG on the main sub­ject mat­ter & lot for­ma­tion

The Bavar­i­an Supreme Court (Bay­ObLG) issued a text­book deci­sion on Sep­tem­ber 10, 2025 (case ref­er­ence: Verg 6/25) on fun­da­men­tal ques­tions of pub­lic pro­cure­ment law: How is the main object of a mixed con­tract deter­mined and when may the award of spe­cial­ist lots be dis­pensed with? The deci­sion shows that the val­ue share of the con­struc­tion ser­vices only has an ori­en­ta­tion func­tion and does not sole­ly deter­mine the type of pro­ce­dure.

Our video dis­cussing the judg­ment:

Facts: The clas­si­fi­ca­tion of a park­ing guid­ance sys­tem

The sub­ject of the ten­der was the pro­cure­ment and instal­la­tion of a park­ing guid­ance sys­tem for nine park­ing spaces and two park­ing garages. The sys­tem was intend­ed to reduce park­ing search traf­fic by dis­play­ing free capac­i­ties, in par­tic­u­lar for spe­cif­ic vehi­cle types (e.g. motorhomes).

The con­tract was ini­tial­ly award­ed nation­al­ly in accor­dance with VOB/A and was described as a “con­struc­tion mea­sure” with an esti­mat­ed con­tract val­ue of 1.39 mil­lion euros. The spec­i­fi­ca­tions con­tained the titles “Civ­il engi­neer­ing” and “Dis­play ele­ments and con­trol”. In addi­tion to the price (70%), the con­cept (20%) and ener­gy con­sump­tion (10%) were defined as award cri­te­ria. The con­cept for detec­tion accu­ra­cy had to achieve a min­i­mum score in order not to be exclud­ed.

One bid­der, spe­cial­iz­ing in elec­tri­cal instal­la­tion sys­tems, object­ed to the ten­der. He was of the opin­ion that it was a sup­ply and ser­vice con­tract and should have been put out to ten­der through­out Europe because the rel­e­vant EU thresh­old had been exceed­ed. Fur­ther­more, he crit­i­cized the fail­ure to divide the civ­il engi­neer­ing ser­vices into lots. The North Bavar­i­an Pub­lic Pro­cure­ment Cham­ber reject­ed the appli­ca­tion, as the val­ue share of the con­struc­tion ser­vices (approx. 40–49% of the total val­ue) was the main focus.

Key point of the deci­sion: The true main object lies in the func­tion

The Bay­ObLG over­turned the deci­sion of the pro­cure­ment cham­ber and ruled in favor of the appli­cant. It found that the con­tract­ing author­i­ty must put the con­tract out to ten­der through­out Europe and divide it into lots.

1. qual­i­fi­ca­tion of the order: func­tion takes prece­dence over val­ue

In the case of a mixed con­tract (con­struc­tion and sup­ply and ser­vices), the main sub­ject mat­ter must be deter­mined on the basis of the over­all legal and eco­nom­ic cir­cum­stances.

• Role of the val­ue shares: The val­ue of the con­struc­tion ser­vices (here approx. 40–49%) only has an ori­en­ta­tion and con­trol func­tion. There are no fixed val­ue lim­its.

• Focus on ser­vices: The court saw the focus on the sup­ply and ser­vices. The con­tract was char­ac­ter­ized by the design and con­struc­tion of the park­ing guid­ance sys­tem, not by the required con­struc­tion ser­vices.

• The deci­sive fac­tor is the pur­pose: the pur­pose of the con­tract was to opti­mize the use of the exist­ing park­ing spaces and to reg­u­late traf­fic, not to inter­vene in the con­struc­tion.

• Indi­ca­tor award cri­te­ri­on: The out­stand­ing impor­tance of the cri­te­ri­on “con­cept” (detec­tion accu­ra­cy and effort for recal­i­bra­tion) showed that the tech­ni­cal solu­tions for data acqui­si­tion and not the civ­il engi­neer­ing work were the for­ma­tive part of the con­tract.

2. vio­la­tion of the require­ment to award lots

The con­tract­ing author­i­ty vio­lat­ed Sec­tion 97 (4) sen­tences 2 and 3 GWB.

• Lot award­ing as a rule: As there is a sep­a­rate mar­ket for civ­il engi­neer­ing and park­ing guid­ance sys­tem ser­vices, the cre­ation of spe­cial­ist lots was gen­er­al­ly required.

• No suf­fi­cient doc­u­men­ta­tion: The excep­tion to the prin­ci­ple of award­ing lots (over­all award) must be jus­ti­fied by a com­pre­hen­sive con­sid­er­a­tion of the con­flict­ing inter­ests, where­by the rea­sons for the over­all award must pre­vail. The client had not doc­u­ment­ed its con­sid­er­a­tions pri­or to the announce­ment, which already con­sti­tutes an error.

• Insuf­fi­cient jus­ti­fi­ca­tion: The gen­er­al­ly asso­ci­at­ed coor­di­na­tion effort, a poten­tial cost risk or the risk of a time delay can­not jus­ti­fy an over­all award on their own.

Tips for pub­lic clients: focus and con­sid­er­a­tion

The deci­sion is a strong sig­nal that the for­mal des­ig­na­tion of a con­tract or the pure val­ue share of a ser­vice does not deter­mine the applic­a­ble pro­cure­ment reg­u­la­tions.

• Qual­i­ta­tive over­all assess­ment: In the case of mixed con­tracts, the func­tion­al pur­pose of the project is deci­sive. Ask your­self: What is the con­trac­tu­al oblig­a­tion? Is it the con­struc­tion of a build­ing (con­struc­tion con­tract) or the inte­gra­tion of a com­plex tech­ni­cal solu­tion for opti­miza­tion (supply/service con­tract)?

• Lot award­ing as a prin­ci­ple: Lot award­ing is the rule. An over­all award is only per­mit­ted in the case of com­pelling eco­nom­ic or tech­ni­cal rea­sons that require a com­pre­hen­sive assess­ment and clear­ly out­weigh the rea­sons.

• Exclu­sion of stan­dard rea­sons: Typ­i­cal risks such as an increased coor­di­na­tion effort, war­ran­ty issues, gen­er­al cost risk or slight time delays do not jus­ti­fy an over­all award.

• Doc­u­men­ta­tion oblig­a­tion: The deci­sion not to award the lot must be com­pre­hen­sive­ly doc­u­ment­ed before the announce­ment. Post­pon­ing rea­sons is high­ly risky and insuf­fi­cient in the event of a dis­pute.

Tips for bid­ders and appli­cants: Check lot for­ma­tion and legal process

The rul­ing shows that bid­ders can suc­cess­ful­ly take legal action even in the case of sup­pos­ed­ly clear-cut nation­al con­struc­tion ten­ders.

• Check­ing the main sub­ject mat­ter: If you feel exclud­ed from par­tic­i­pa­tion due to the mixed nature (con­struc­tion and technology/IT), check whether the actu­al focus of the ser­vice is on the sup­ply of goods and ser­vices. The low­er thresh­old val­ue for sup­plies and ser­vices opens up the upper thresh­old legal pro­tec­tion.

• Objec­tion to the over­all award: Check whether a spe­cial­ized lot for­ma­tion would be pos­si­ble. The client must pro­vide detailed rea­sons for an over­all award. Raise a com­plaint if the clien­t’s jus­ti­fi­ca­tion is based sole­ly on typ­i­cal, inher­ent dis­ad­van­tages of the lot award.

• Enti­tle­ment to sub­mit an appli­ca­tion with­out a ten­der: You may also be enti­tled to sub­mit an appli­ca­tion with­out sub­mit­ting a ten­der if the alleged breach of pub­lic pro­cure­ment law (e.g. fail­ure to split lots) has con­clu­sive­ly pre­vent­ed you from sub­mit­ting a ten­der with a good chance of being suc­cess­ful.