On March 6, 2026, our lawyer Christian Wiere dealt with the decision of the Rhineland Public Procurement Chamber (VK) of June 2, 2025 (Ref.: VK 63/24) in an abante live on public procurement law.
The VK Rheinland ruled that a contracting authority can lawfully exclude a bidder from the award procedure due to poor performance of a previous contract if there is a negative prognosis for future reliability.
Our video discussing the judgment:
Facts of the case
The subject of the review proceedings was the Europe-wide invitation to tender for security services for a refugee shelter by the state of North Rhine-Westphalia. The applicant had applied for one lot, but had previously been entrusted with the guarding of a similar facility, which resulted in an extraordinary termination without notice by the respondent. The reason for this step was an unannounced test alarm involving the fire department, during which serious deficiencies in the evacuation were discovered: Residents were not led to the assembly point, the evacuation was carried out only hesitantly and there was an almost complete lack of coordination on site by the property manager. The fire department then recommended that the facility cease operations immediately for safety reasons, as there was an immediate risk to the life and limb of the 357 residents in the event of a fire. While the respondent based the exclusion on omissions and inadequate staff qualifications, the applicant disputed the allegations and claimed, among other things, contradictory service specifications and a lack of cooperation from the residents due to previous false alarms.
Key point of the decision
The decision of the procurement chamber underlines that the reliability of a bidder is not a mere formality, but requires a well-founded prognosis decision by the contracting authority. Firstly, the chamber made it clear that the protection of life and limb in a sensitive facility such as a refugee shelter has top priority. The proper implementation of an evacuation in the event of a fire is therefore not merely a secondary obligation, but an essential requirement for the execution of the public contract. Failure in this area touches directly on the core of the security service owed. A decisive point for practice is also the standard of proof: For an exclusion under Section 124 (1) No. 7 GWB, full proof of the grounds for termination under civil law is not required. It is sufficient if the contracting authority has gained a conviction through careful documentation that “bids silence to reasonable doubts”. The fact that the prognosis in the present case was negative was largely due to the company’s lack of self-reprocessing. As the applicant completely denied the deficiencies identified and showed no awareness of the problem, there was no indication for the client of any future improvement. Finally, the decision also withstood the proportionality test. When weighing up the interests, the economic interest of a bidder takes second place to the protection of the physical integrity of the residents, especially since the respondent had already incurred considerable additional organizational and financial costs due to the necessary immediate relocation of the residents.
Tips for public clients
- Careful documentation: Meticulously record poor performance in current contracts, ideally with the involvement of neutral third parties such as the fire department or technical experts.
- Conduct a hearing: It is imperative that you give the bidder the opportunity to comment before an exclusion in order to incorporate the arguments into the discretionary decision.
- Focus on the forecast: Do not justify the exclusion solely on the basis of the past, but derive from it in a comprehensible manner why proper service provision is not to be expected for the current project.
- Use coordination: If you have any doubts about the reliability of the bidder, talk to other departments or clients about their experiences with the bidder.
Tips for bidders and funding recipients
- Show awareness of the problem: In the event of reprimands or dismissals, simply denying mistakes is often counterproductive for future applications.
- Introduce self-cleaning measures: Actively document what structural changes (e.g. staff training, new processes) you have made to prevent future breaches of duty.
- Take contractual requirements seriously: Particularly in the case of safety-relevant services such as fire protection or evacuation, even one-off failures quickly lead to a permanent negative prognosis.
- Seek communication: Try to resolve disagreements during the contract period promptly and constructively before they lead to a formal termination and thus to the “exclusion stamp”.
