“And” equals “or”? Tak­ing cumu­la­tive require­ments for proof of suit­abil­i­ty seri­ous­ly

On Decem­ber 3, 2025, the Rhineland Pub­lic Pro­cure­ment Cham­ber (VK) ruled in its deci­sion (Ref.: VK 34/25) that the cumu­la­tive require­ment of cer­tifi­cates of com­pe­tence for con­trac­tors and man­agers must be tak­en at face val­ue — there is no “or” here.

Our video dis­cussing the judg­ment

Facts of the case

As part of a Europe-wide invi­ta­tion to ten­der for land­scap­ing work, the client request­ed proof of stud­ies or cer­tifi­cates of pro­fes­sion­al qual­i­fi­ca­tion for both the “ser­vice provider or con­trac­tor” and the “com­pa­ny’s man­age­ment”. The sub­se­quent appli­cant sub­mit­ted the ten­der with the low­est price.

How­ev­er, upon sub­se­quent request for sup­port­ing doc­u­ments, the bid­der only sub­mit­ted evi­dence for the employ­ees planned for the project. As no evi­dence was pro­vid­ed for the man­ag­ing direc­tor of the GmbH, who was entered in the com­mer­cial reg­is­ter, the client exclud­ed the bid. The bid­der argued that the man­age­ment was not oper­a­tional­ly involved in the con­struc­tion project and that a GmbH, as a legal enti­ty, could not sub­mit any proof of stud­ies itself.

Key point of the deci­sion

The VK Rhein­land con­firmed the legal­i­ty of the exclu­sion and based its deci­sion on sev­er­al key con­sid­er­a­tions. First­ly, the cham­ber clar­i­fied that the word­ing takes prece­dence over inter­pre­ta­tion: the objec­tive recip­i­ent hori­zon of a rea­son­able and knowl­edge­able bid­der is deci­sive. As the con­junc­tion “and” already address­es two groups of peo­ple accord­ing to gen­er­al lin­guis­tic under­stand­ing, it leaves no scope for an alter­na­tive inter­pre­ta­tion.

Anoth­er cru­cial point is the rel­e­vance of com­pa­ny man­age­ment. The pro­fes­sion­al com­pe­tence of the entre­pre­neur is essen­tial for the orga­ni­za­tion­al han­dling and con­trol of process­es. In the case of a GmbH, this respon­si­bil­i­ty reg­u­lar­ly falls to the man­ag­ing direc­tor. In addi­tion, the cham­ber empha­sized that the bid­der does not have to check the pur­pose of the bid: A bid­der does not have to ques­tion the pur­pose of the con­tract­ing author­i­ty’s require­ments, pro­vid­ed that these are — as affirmed here — relat­ed to the con­tract.

Final­ly, the prin­ci­ple of preclu­sion applies. If the bid­der had con­sid­ered the claim to be inad­mis­si­ble or tech­ni­cal­ly impos­si­ble, it should have object­ed to this before sub­mit­ting the bid.

Tips for pub­lic clients

• Pre­cise word­ing: Use clear links in the ten­der doc­u­ments and notices (e.g. “cumu­la­tive” or “as well as”) to avoid mis­un­der­stand­ings with “and”.
• Doc­u­men­ta­tion of addi­tion­al require­ments: Set clear dead­lines for addi­tion­al require­ments and name the miss­ing doc­u­ments explic­it­ly with ref­er­ence to the orig­i­nal selec­tion cri­te­ria.
• Ensure equal treat­ment: Ensure that the suit­abil­i­ty test is car­ried out with the same lev­el of detail for all bid­ders in order to min­i­mize areas of attack in the review process.

Tips for bid­ders and fund­ing recip­i­ents

• Lit­er­al ful­fill­ment: Take every require­ment in the ten­der doc­u­ments at its word. “And” nec­es­sar­i­ly means that all list­ed ele­ments must be ver­i­fied.
• Ear­ly com­plaint: If a claim seems unrea­son­able or can­not be ful­filled for your type of com­pa­ny (e.g. GmbH), you must com­plain about this before the end of the offer peri­od.
• Com­plete­ness for sub­se­quent claims: Make metic­u­lous use of dead­lines for fol­low-up requests. Miss­ing evi­dence for the com­pa­ny orga­ni­za­tion can lead to exclu­sion, even for tech­ni­cal­ly excel­lent project teams.