How our expe­ri­enced spe­cial­ist lawyers can sup­port you in the pro­cure­ment process

Bid­ders and appli­cants need a help­ing hand

Award pro­ce­dures are often char­ac­ter­ized by a high degree of for­mal­i­ty. Dead­lines and for­mal require­ments lurk around every cor­ner. Par­tic­u­lar­ly bid­ders who rarely par­tic­i­pate in pub­lic pro­cure­ment, but also bid­ders who intend to sub­mit par­tic­u­lar­ly high-qual­i­ty bids, should leave noth­ing to chance here. Attor­ney guid­ance through the pro­cure­ment process can make all the dif­fer­ence when your com­pan­ion is a high­ly spe­cial­ized pro­cure­ment law firm that can pro­vide time­ly and savvy advice on how best to pro­ceed at any stage of the pro­cure­ment process. In this con­text, the aim of our efforts is by no means a con­tentious dis­pute. On the con­trary, it should be avoid­ed at all costs. The ear­li­er we are involved in the pro­cure­ment process, the more like­ly we are to be able to influ­ence this and help your sole inter­est in win­ning the con­tract to suc­ceed.

Deter­mine dead­lines, man­age ques­tions and rep­ri­mands

Once the deci­sion has been made that a bid­ding com­pa­ny will par­tic­i­pate in the award, the cur­rent dead­lines are to be deter­mined. This starts with the par­tic­i­pa­tion appli­ca­tion or bid dead­line, but does not end there. We are think­ing of the ques­tion peri­od, the offer bind­ing peri­od, the com­plaint peri­ods, the start of the con­tract, etc. All these dead­lines must be not­ed and the actions bound by the dead­lines must be tak­en in time. Bid­der ques­tions, in par­tic­u­lar, can prove use­ful in ensur­ing your pro­ce­dur­al suc­cess. We will be hap­py to pre­pare them togeth­er with you. Some­times rep­ri­mands are also use­ful to get the client to include pro­vi­sions favor­able to your com­pa­ny. Of course, we will pre-for­mu­late them for you, in due time and form, and with the sole aim of secur­ing you the award of the con­tract.

Offer end con­trol

As the dead­line for bids approach­es, the ques­tion of whether all doc­u­ments have been obtained and whether all infor­ma­tion can be ver­i­fied beyond doubt becomes increas­ing­ly urgent. Some­times the bid­der falls prey to a cer­tain oper­a­tional blind­ness, so it is advis­able to have an attor­ney look at the bid through the eyes of the client. Then, how­ev­er, it is of deci­sive impor­tance that this lawyer also has the eyes of the client, i.e. — like us at abante Recht­san­wälte — has expe­ri­ence from hun­dreds of award pro­ce­dures and can there­fore accu­rate­ly assess how the client is like­ly to per­ceive and exam­ine indi­vid­ual bid con­tents. So, as a spe­cial­ized law firm, we will glad­ly take over the final bid inspec­tion for you, if only you sub­mit the bid to us in time enough. In this way, we pro­tect you against a sur­prise exclu­sion from the offer. And get you all the award oppor­tu­ni­ties.

Bid­ders must rep­ri­mand if they want to pre­serve their rights

In pub­lic pro­cure­ment law, there is an oblig­a­tion to give notice of defects. In the upper thresh­old seg­ment, it is reg­u­lat­ed by sim­ple law. Accord­ing­ly, any infringe­ments of pro­cure­ment law that are iden­ti­fi­able from the notice or the award doc­u­ments must be noti­fied by the expiry of the dead­line for appli­ca­tions or bids. If the award error has been pos­i­tive­ly iden­ti­fied, the peri­od for lodg­ing a com­plaint is only 10 days from the date of knowl­edge. In the sub-thresh­old area, it is a bit more com­pli­cat­ed. In part, state pro­cure­ment laws pro­vide for a rep­ri­mand require­ment. In part, case law has cre­at­ed an oblig­a­tion to give notice of defects. All this should be known by your spe­cial­ist attor­ney for pub­lic pro­cure­ment law; this is the core knowl­edge of a spe­cial­ized law firm. Test it.

Any con­duct of the con­tract­ing author­i­ty is a suit­able object of com­plaint

In prin­ci­ple, your com­plaint can refer to any con­duct in the award pro­ce­dure, be it a cer­tain for­mu­la­tion in the award doc­u­ments, the exclu­sion of your bid, a poor eval­u­a­tion of your bid or mere­ly a state­ment made by the con­tract­ing author­i­ty at a joint meet­ing. By your rep­ri­mand you express that you reject a con­duct of the con­tract­ing author­i­ty as con­trary to pro­cure­ment law. At the same time, your rep­ri­mand requires the con­tract­ing author­i­ty to rem­e­dy the sit­u­a­tion, i.e. to change its behav­ior in the future and elim­i­nate the award error. The rep­ri­mand is there­fore the means of choice if you can­not accept the con­duct of the con­tract­ing author­i­ty with­out at the same time “see­ing your hides swim away”. How and, above all, when exact­ly you should explain which rep­ri­mand is best deter­mined in a con­fi­den­tial con­ver­sa­tion with the lawyers of our spe­cial­ized law firm. We can also rep­re­sent you in the com­plaint process and make the rel­e­vant com­plaints for you at the right time.
A com­plaint is very often rec­om­mend­ed after receipt of the rejec­tion let­ter. In the upper thresh­old range, the con­tract­ing author­i­ty is oblig­ed under Sec­tion 134 GWB to inform you that some­one else is to be award­ed the con­tract. He must send this infor­ma­tion to you with­in a cer­tain peri­od (usu­al­ly 10 days) before the planned award, so that you still have enough time to review the deci­sion and get help. Also, the con­tract­ing author­i­ty must name the com­peti­tor to be award­ed the con­tract in the rejec­tion let­ter. This is a good start­ing point for you to be able to file a promis­ing com­plaint in a very time­ly man­ner, for exam­ple, if your com­peti­tor is not suit­able, offers ser­vices that tech­ni­cal­ly devi­ate from the ser­vice descrip­tion, or has cal­cu­lat­ed too cheap­ly, etc. The best way to find out what the com­plaint should cov­er in detail is to talk to the spe­cial­ized lawyers at our law firm. In this respect, do not let any time pass and call us on the same day you receive the rejec­tion let­ter, so that we can deter­mine whether your case is promis­ing and whether it makes sense to instruct our pro­cure­ment law firm to enforce your rights. Dead­lines are tight, you have no time to lose.

The rep­ri­mand is the gate­way to the review pro­ce­dure

A per­son who does not file a com­plaint can­not request a (suc­cess­ful) review. This prin­ci­ple, as always, is not with­out excep­tions. But most of the time he is quite right. So rep­ri­mand even if you think that the con­tract­ing author­i­ty will not move any­way! In turn, you must ini­ti­ate the review pro­ce­dure fol­low­ing the non-rejec­tion deci­sion (there is also a dead­line here!) or even before. Unfor­tu­nate­ly, it is often the case that the award of the con­tract is immi­nent, and the appli­ca­tion for review becomes inad­mis­si­ble when the con­tract is award­ed. So, depend­ing on the state of the pro­cure­ment process, you can’t wait too long and must act. To ensure that you do not make any mis­takes here and do not inad­ver­tent­ly lose your chances of being award­ed the con­tract, it is best to con­sult with a law firm spe­cial­iz­ing in pub­lic pro­cure­ment law. We have expe­ri­ence from a three-dig­it num­ber of review pro­ceed­ings; with us on your side, you will not lose any rights. We are famil­iar with the ser­vice cus­toms of the pub­lic pro­cure­ment tri­bunals as well as all oth­er require­ments that must be observed for a suc­cess­ful review.

The course of the review pro­ce­dure

After receipt of the appli­ca­tion, the Pro­cure­ment Cham­ber shall exam­ine whether the appli­ca­tion for review is man­i­fest­ly inad­mis­si­ble or man­i­fest­ly unfound­ed. If it can iden­ti­fy nei­ther one nor the oth­er, it shall deliv­er the request for review to the con­tract­ing author­i­ty or noti­fy the con­tract­ing author­i­ty of the receipt of the request. Only and only this caus­es the sur­charge pro­hi­bi­tion. For this rea­son, appli­cant bid­ders should ini­tial­ly focus on this and the lawyers at our spe­cial­ist law firm attach par­tic­u­lar impor­tance to time­ly deliv­ery of the appli­ca­tion, name­ly in good time before the ear­li­est pos­si­ble award date.
Once the pro­cure­ment cham­ber has received the award file, it usu­al­ly grants the appli­cant access to the file, unless the appli­ca­tion is inad­mis­si­ble or the access to the file is not required to help the appli­ca­tion suc­ceed. As a rule, the Pro­cure­ment Cham­ber hears the review appli­ca­tion oral­ly and in pres­ence after a few weeks or months, but some­times it also issues a notice on the legal sit­u­a­tion before­hand with the inten­tion of per­suad­ing the par­ties to make an oral hear­ing super­flu­ous. With­in five weeks, the Pro­cure­ment Cham­ber is sup­posed to make a deci­sion on the request for review, but very often it extends the deci­sion peri­od, which it is in prin­ci­ple enti­tled to do. The par­ties com­plained against can file an imme­di­ate appeal against the deci­sion of the Pro­cure­ment Cham­ber with the High­er Region­al Court, which is done in about one fifth of the cas­es.

The deci­sion of the Pro­cure­ment Cham­ber

The Pro­cure­ment Cham­ber shall uphold the peti­tion­ing bid­der if it has been vio­lat­ed in rights pro­tect­ing the bid­der. Depend­ing on which right pro­tect­ing bid­ders has been vio­lat­ed, it will then return the award pro­ce­dure to an ear­li­er stage.
If, for exam­ple, the ten­der eval­u­a­tion was car­ried out incor­rect­ly to the detri­ment of the appli­cant, it will return the award pro­ce­dure to the sta­tus pri­or to the eval­u­a­tion and oblige the con­tract­ing author­i­ty to repeat the eval­u­a­tion. If the con­tract­ing author­i­ty behaves accord­ing­ly, as is reg­u­lar­ly the case, this can lead to the award of the con­tract to the appli­cant.
If, for exam­ple, the appli­cant suc­cess­ful­ly objects to indi­vid­ual pro­vi­sions in the ten­der doc­u­ments, the award­ing cham­ber will return the award pro­ce­dure to the peri­od pri­or to the Europe-wide announce­ment so that the con­tract­ing author­i­ty can revise the doc­u­ments and allow new ten­ders on this basis. If the bid­der objects to the exclu­sion of its bid or to the con­sid­er­a­tion of a com­pet­ing bid, this action may also lead to the fact that — if the con­tract­ing author­i­ty is oblig­ed to do so by the Pro­cure­ment Cham­ber — it is also award­ed the con­tract in the award pro­ce­dure in a sec­ond step by the con­tract­ing author­i­ty.

What applies below the EU thresh­olds?

The com­ments on the review pro­ce­dure only relate to award pro­ce­dures above the EU thresh­olds. In the sub-thresh­old area, there is no real review pro­ce­dure in most fed­er­al states. Only in Sax­ony-Anhalt, Thuringia and Rhineland-Palati­nate (and with some excep­tions also in Sax­ony) can com­pa­ra­ble pro­ce­dures be oper­at­ed in the sub-thresh­old range. In the oth­er fed­er­al states, how­ev­er, the award pro­ce­dure can be influ­enced in your favor by well-found­ed com­plaints, and pos­si­bly also by appli­ca­tions for inter­im injunc­tions to the civ­il courts. Oth­er­wise, dam­ages wpcode­self may help in the sub-thresh­old segment[Link]. So con­tact us in good time here, too, and we will check with you the best way to enforce your rights.

Award­ed, causa non fini­ta

Time and again, pub­lic con­tract­ing author­i­ties award con­tracts in clear vio­la­tion of pub­lic pro­cure­ment law. This is then referred to as a de fac­to award. Such an act is unlaw­ful and may be declared null and void in the upper thresh­old range. You can find out how this can be done in detail in a con­ver­sa­tion with one of the spe­cial­ized lawyers in our law firm. We have already suc­cess­ful­ly han­dled numer­ous nul­li­ty deter­mi­na­tion pro­ceed­ings through­out Ger­many and can give you an idea of the dura­tion, costs and prospects of suc­cess.

How you learn about de fac­to awards

This is very easy in the lin­tel seg­ment. The con­tract­ing author­i­ty will inform you about it. In the Ten­ders Elec­tron­ic Dai­ly, which can be freely accessed on the Inter­net (“TED”), the con­tract­ing author­i­ty pub­lish­es which con­tracts it has award­ed. Some­times he even pub­lish­es in advance which con­tracts he plans to award soon with­out a ten­der. As a rule, the names of your com­peti­tors are then also includ­ed in the announce­ment. But pay atten­tion to the dead­lines, because they are very short. The best thing to do is to con­tact one of our spe­cial­ist lawyers on the very day you become aware of the mat­ter. Oth­er­wise, it can­not be ruled out that you will sim­ply lose the pos­si­bil­i­ty of hav­ing the inva­lid­i­ty of the unlaw­ful­ly con­clud­ed con­tracts estab­lished.

What makes a de fac­to award a de fac­to award?

The answer is giv­en by the law. Accord­ing to this pro­vi­sion, the con­tract may be declared null and void if the con­tract­ing author­i­ty has award­ed the con­tract in vio­la­tion of Sec­tion 134 of the ARC. Accord­ing to this pro­vi­sion, the con­tract­ing author­i­ty in the upper-thresh­old seg­ment (in the low­er-thresh­old seg­ment, too, advance infor­ma­tion oblig­a­tions exist in more and more fed­er­al states) is oblig­ed to inform the los­ing com­peti­tor before award­ing the con­tract and to wait a few days before award­ing the con­tract. If it vio­lates the rather detailed require­ments in this respect, the con­clu­sion of the con­tract can be chal­lenged. The oth­er case of inval­i­da­tion is when the con­tract­ing author­i­ty has award­ed the con­tract with­out pri­or pub­li­ca­tion of a notice in the Offi­cial Jour­nal of the Euro­pean Union, with­out being allowed to do so by law. Whether one of the two cas­es is giv­en, you will quick­ly find out in coop­er­a­tion with us as a pro­cure­ment law firm. Do not hes­i­tate and ask us.

The con­se­quence of the dec­la­ra­tion of inva­lid­i­ty: the rever­sal of all ser­vices ren­dered

If you have suc­cess­ful­ly applied for a dec­la­ra­tion of inva­lid­i­ty, this does not mean that you will be award­ed the con­tract. How­ev­er, as a result, the con­tract, the inva­lid­i­ty of which has been estab­lished, must be rescind­ed. This is because ser­vices were pro­vid­ed on an invalid basis. This usu­al­ly harms your com­pe­ti­tion, which ulti­mate­ly par­tic­i­pat­ed in the pub­lic pur­chaser’s infringe­ment and is there­fore not wor­thy of pro­tec­tion. This is because they have to pay back the mon­ey they receive minus com­pen­sa­tion for lost val­ue. Fur­ther­more, the inva­lid­i­ty deter­mi­na­tion has the con­se­quence that — in case of a con­tin­u­ing pro­cure­ment need of the con­tract­ing author­i­ty — the ser­vice must be put out to ten­der for the first time. And con­se­quent­ly you can sub­mit an offer. Whether there may be fur­ther advan­tages or even flank­ing mea­sures, e.g. mea­sures under com­pe­ti­tion law, should be tak­en, is best deter­mined in a con­sul­ta­tion with the spe­cial­ist lawyers at our law firm. We invite you to do so.

What does com­pen­sa­tion for dam­ages have to do with pro­cure­ment errors?

A lot. Bid­ders may be enti­tled to dam­ages if pub­lic con­tract­ing author­i­ties com­mit pro­cure­ment errors. In this con­text, by no means every award error leads to a lia­bil­i­ty for dam­ages. On the oth­er hand, there are cer­tain errors that reg­u­lar­ly give rise to a claim for com­pen­sa­tion. In indi­vid­ual cas­es, this involves con­sid­er­able amounts. Com­pen­sa­tion may even be claimed for loss of prof­it and loss of con­tri­bu­tion to cov­er gen­er­al busi­ness expens­es.

The can­cel­la­tion of the award pro­ce­dure as a typ­i­cal case of dam­ages in pub­lic pro­cure­ment law

If the con­tract­ing author­i­ty can­cels the award pro­ce­dure, the pre­vi­ous­ly made bid­ding efforts were most­ly use­less. The bid­der has wast­ed work­ing time by par­tic­i­pat­ing in the award pro­ce­dure. He may also have brought in out­side con­sul­tants to make the most eco­nom­i­cal bid pos­si­ble, and those con­sul­tants cost him a lot of mon­ey. The oblig­a­tion of the con­tract­ing author­i­ty to pay dam­ages is now assessed accord­ing to whether the can­cel­la­tion was law­ful; how­ev­er, the effec­tive­ness of the can­cel­la­tion — which is reg­u­lar­ly the case — is irrel­e­vant. The require­ments for the legal­i­ty of the revo­ca­tion are not entire­ly low, so that a sec­ond look is gen­er­al­ly worth­while. Whether you as a bid­der or appli­cant are now enti­tled to indem­ni­fi­ca­tion is best clar­i­fied togeth­er with us as your spe­cial­ist law firm for pub­lic pro­cure­ment law. Please call us direct­ly after the can­cel­la­tion.

The award to the wrong per­son as anoth­er typ­i­cal case of dam­ages

Imag­ine the fol­low­ing case: You are the first-placed bid­der and your bid is exclud­ed because you — alleged­ly — com­mit­ted a for­mal error, because you — alleged­ly — are not suit­able, or because you — alleged­ly — cal­cu­lat­ed inad­e­quate­ly. Sub­se­quent­ly, the bid of the run­ner-up will be award­ed. Con­tact us in such a sit­u­a­tion, even if you have not at any time rep­ri­mand­ed or oth­er­wise object­ed to the actions of the con­tract­ing author­i­ty. We claim on your behalf the com­pen­sa­tion of the lost prof­it and the con­tri­bu­tion to the gen­er­al busi­ness expens­es from the con­tract­ing author­i­ty. Rea­son: The exclu­sion of your bid was unjus­ti­fied, so you should have been award­ed the con­tract — and not the run­ner-up at the time. Sounds com­pli­cat­ed? It isn’t.

The enforce­ment of claims for dam­ages as a com­po­nent of receiv­ables man­age­ment

Your goal as a bid­der or appli­cant should be to avoid giv­ing away dam­age claims under any cir­cum­stances. You should also col­lect small­er receiv­ables in a stan­dard­ized man­ner. To ensure that you suc­ceed, we will be hap­py to help you inte­grate pro­cure­ment lia­bil­i­ty claims into your receiv­ables man­age­ment. We show you in detail in which cas­es you should expect a claim for dam­ages and enforce your claims in a stan­dard­ized man­ner and in com­pli­ance with all dead­lines. Feel free to call us and we’ll talk about it.

Con­tract exe­cu­tion begins with the award of the con­tract

The award of the con­tract not only marks the end of the award pro­ce­dure. It is also the con­clu­sion of the con­tract. The con­clu­sion of the con­tract gives rise to mutu­al rights and oblig­a­tions. The bid­der becomes the con­trac­tor — and now finds that he is hin­dered in the exe­cu­tion of his ser­vices, that meth­ods of exe­cu­tion envis­aged by the client are tech­ni­cal­ly impos­si­ble or that he needs var­i­ous sup­ple­men­tary orders in order to bring about the desired suc­cess of the ser­vice. Pub­lic clients do not spend their own mon­ey, so the con­trac­tor should pro­ceed in a struc­tured and, above all, legal­ly clean man­ner if he wants to real­ize his claims as con­flict-free as pos­si­ble. As a con­trac­tor, feel free to con­tact us. With our many years of expe­ri­ence, we enforce your claims and pro­tect your rights in the con­trac­tu­al rela­tion­ship.

The sup­ple­men­tary offer

Not only in the con­struc­tion sec­tor, but also in the sup­ply of goods and ser­vices, there are changes in per­for­mance and addi­tion­al ser­vices that become nec­es­sary. Agree­ment must then be reached with the client as to whether and, if so, what remu­ner­a­tion is to be pro­vid­ed for this. How­ev­er, every sup­ple­men­tary case brings with it legal issues. Has the alleged addi­tion­al ser­vice not in fact already been ordered? On what con­trac­tu­al basis is the remu­ner­a­tion to be adjust­ed if the change in per­for­mance is not asso­ci­at­ed with any appar­ent addi­tion­al expen­di­ture for you as the con­trac­tor? It is also best to dis­cuss these issues with us as your law firm spe­cial­iz­ing in the entire life cycle of pub­lic pro­cure­ment.

The obstruc­tion and con­cern notice

It is bet­ter to send one too many obstruc­tion and con­cern notices to the con­trac­tor than one too few. This is because the con­tract­ing author­i­ty must make finan­cial pro­vi­sions and imple­ment its project in accor­dance with the sched­ule. Dis­abil­i­ty and con­cern noti­fi­ca­tions are there­fore often enough a bless­ing for him. In this way, they give him an impres­sion of where things are going wrong, with­out the project man­age­ment, which may be exter­nal, being able to con­ceal or dis­guise this. Notices of obstruc­tion and con­cerns, for exam­ple, are pre­req­ui­sites to claim­ing down­time costs. This is an enti­tle­ment cat­e­go­ry that con­trac­tors pull far too infre­quent­ly. You can clar­i­fy which pro­ce­dure is rec­om­mend­ed from a legal point of view with our lawyers. We will give you a com­pre­hen­sive idea of what actions need to be tak­en and against whom.

The defect case

With­in the war­ran­ty peri­od, some­times — alleged — defects occur. Some­times, how­ev­er, the — alleged — defects are direct­ly so sig­nif­i­cant that they alleged­ly pre­vent accep­tance. One or the oth­er pub­lic client is head­ing for ter­mi­na­tion for cause, espe­cial­ly towards the end of the project. To ensure that you do not lose any rights not only, but also in the event of ter­mi­na­tion, you must pro­ceed in a struc­tured and planned man­ner and observe the case law and con­trac­tu­al require­ments. For this pur­pose, you are wel­come to call on us as a spe­cial­ist law firm.

Com­pa­nies can and may coop­er­ate — for their own good and for the good of the client

There are many forms of cor­po­rate coop­er­a­tion in the pro­cure­ment process that are rec­og­nized under pro­cure­ment law. The motives for com­pa­nies to join togeth­er for the pur­pose of obtain­ing con­tracts vary. Some­times coop­er­a­tion serves to com­pen­sate for one’s own defi­cien­cies in apti­tude or resources. Or it is intend­ed to bring two com­pa­nies clos­er togeth­er, which is desir­able in any case. We dis­cuss the pos­si­bil­i­ties of coop­er­a­tion togeth­er with you as a law firm spe­cial­iz­ing in pub­lic pro­cure­ment law and point out the oppor­tu­ni­ties and risks. Just con­tact us.

The sup­pli­er as ter­ra incog­ni­ta in terms of pro­cure­ment law

As a rule, the con­tract­ing author­i­ty is not inter­est­ed in the sup­pli­ers of its con­trac­tor. Some­times — for exam­ple, because the leg­is­la­tor requires it — it wants the bid­der to make self-dec­la­ra­tions about its sup­pli­er rela­tion­ships in the award pro­ce­dure. How­ev­er, the fact that the sup­pli­er declares him­self in some way — and the bid­der proves this dec­la­ra­tion in the award pro­ce­dure — is the excep­tion. If you encounter such a require­ment, you should there­fore take a crit­i­cal look at it and con­tact us in good time, i.e. before the dead­line for appli­ca­tions or bids.

The prime con­trac­tor-sub­con­trac­tor rela­tion­ship

The most com­mon form of busi­ness coop­er­a­tion in the award pro­ce­dure and in the ongo­ing con­trac­tu­al rela­tion­ship is that of main con­trac­tor and sub­con­trac­tor (also called sub­con­trac­tor or sub-sub­con­trac­tor). The reg­u­la­tions for the par­tic­i­pa­tion of sub­con­trac­tors dif­fer in the award pro­ce­dure from those reg­u­la­tions that apply in the exe­cu­tion of the con­tract. While a change of sub­con­trac­tor can usu­al­ly be imple­ment­ed quite eas­i­ly in the cur­rent con­tract, the bid­der quick­ly makes a mis­take in the award pro­ce­dure that costs him the con­tract award — for exam­ple, if he intro­duces his prospec­tive sub­con­trac­tors incor­rect­ly or inad­e­quate­ly into the award pro­ce­dure or replaces the sub­con­trac­tor already named in the award pro­ce­dure, which is often, though not always, inad­mis­si­ble. In order to remain clean in terms of pub­lic pro­cure­ment law, you should be accom­pa­nied by our law firm spe­cial­iz­ing in pub­lic pro­cure­ment law.

The bid­ding con­sor­tium

Anoth­er form of busi­ness coop­er­a­tion is the bid­ding con­sor­tium. In terms of pro­cure­ment law, it is by no means more demand­ing than prime con­trac­tor-sub­con­trac­tor coop­er­a­tion. How­ev­er, it presents the com­pa­nies involved with spe­cial chal­lenges in terms of con­trac­tu­al law. Thus, the bid­ding con­sor­tium in the award pro­ce­dure becomes the con­sor­tium in the con­trac­tu­al rela­tion­ship, which, in addi­tion, must occa­sion­al­ly assume cer­tain legal forms because and inso­far as the client requires this. The con­sor­tium must also be sep­a­rat­ed and ter­mi­nat­ed after suc­cess­ful pro­cess­ing of the order. Leave noth­ing to chance here either and con­sult us as your spe­cial­ist law firm for pub­lic pro­cure­ment and con­tract law.

Con­tracts as the basis of any busi­ness coop­er­a­tion

If you want to team up with oth­er com­pa­nies to get and work off the job, it is rec­om­mend­ed to have clean con­tracts that gov­ern your coop­er­a­tion. Depend­ing on the coop­er­a­tion, these can be debt or part­ner­ship agree­ments. These con­tracts must fit the require­ments of the con­tract­ing author­i­ty, and they must also imple­ment the legal require­ments of pub­lic pro­cure­ment law. But you need to bal­ance your inter­ests beyond that, for the entire dura­tion of the project. Feel free to con­tact us and we will pre­pare a con­trac­tu­al arrange­ment togeth­er with you that will meet the com­plex­i­ty of your coop­er­a­tion.

It must be ten­dered

Pub­lic pro­cure­ment law is rid­dled with ten­der­ing oblig­a­tions. How­ev­er, it is not the only legal ground for ten­der­ing. Some­times, ten­ders must also be issued for rea­sons of bud­getary law or EU state aid law. This is the case, for exam­ple, with pub­lic sec­tor land sales. In some cas­es, how­ev­er, antitrust law stip­u­lates that ten­ders must be invit­ed. We know the var­i­ous ten­der­ing oblig­a­tions. If you’re wait­ing for a ten­der that just does­n’t seem to be com­ing, it’s best to con­sult us direct­ly as a spe­cial­ist pro­cure­ment law firm.

Force ten­ders

Ten­der­ing oblig­a­tions, irre­spec­tive of their legal basis, are par­tic­u­lar­ly impor­tant for bid­ders and appli­cants, because only in this way do they become bid­ders and appli­cants in the first place. With­out a call for ten­ders, they do not learn of any busi­ness oppor­tu­ni­ty and, in all fair­ness, there is no clos­ing or sales oppor­tu­ni­ty. The con­tract­ing author­i­ty is sat­is­fied with the con­trac­tu­al sit­u­a­tion as it is and con­tin­ues to rely on its exist­ing ser­vice provider.
This sit­u­a­tion — unsat­is­fac­to­ry from the bid­der’s point of view — can be end­ed. This is because ten­der oblig­a­tions are legal oblig­a­tions. How­ev­er, com­pli­ance with applic­a­ble law can now be enforced, before Ger­man author­i­ties and courts that have the pow­er to order an alert. So if you are affect­ed by a closed-shop men­tal­i­ty, con­ve­nient con­tract­ing author­i­ties and car­tel-like struc­tures, turn to us with con­fi­dence as your spe­cial­ized lawyers for pub­lic pro­cure­ment law. As a law firm spe­cial­iz­ing in pub­lic pro­cure­ment law, we will be hap­py to check for you whether a ten­der­ing oblig­a­tion exists in your case — and sub­se­quent­ly enforce it for you.

Spe­cial case: the frame­work agree­ment

Frame­work agree­ments are par­tic­u­lar­ly impor­tant in the pub­lic sec­tor because they are wide­ly used. They define the frame­work con­di­tions of the indi­vid­ual order, e.g. the prices, but do not usu­al­ly con­tain strict call-off oblig­a­tions or clear quan­ti­ty spec­i­fi­ca­tions. For bid­ders who wish to obtain a frame­work agree­ment, the ques­tion aris­es as to the con­di­tions under which their retender­ing may be required. We are of the opin­ion that this is pos­si­ble if the frame­work agree­ment is exhaust­ed.
The Euro­pean Court of Jus­tice has now twice dealt with the ques­tion of whether frame­work agree­ments can be exhaust­ed. Both times he has affirmed this for the case that the max­i­mum quan­ti­ty to be indi­cat­ed was reached. Then the con­tract­ing author­i­ty must re-ten­der the frame­work agree­ment. In Ger­many, how­ev­er, the appro­pri­ate con­clu­sions have not yet been drawn from this. These are — from the per­spec­tive of bid­ders hop­ing to re-ten­der frame­work agree­ments — that if the max­i­mum quan­ti­ty is reached, the bid­der can also force the re-ten­der. These are — from the per­spec­tive of bid­ders hop­ing to re-ten­der frame­work agree­ments — that if the max­i­mum quan­ti­ty is reached, the bid­der can also force the re-ten­der. So if you are a bid­der look­ing to enter a mar­ket char­ac­ter­ized by mas­ter agree­ments, con­tact us and we will dis­cuss the impli­ca­tions of this case law with you in detail.

You will no longer be called

Pro­cure­ment blocks are often enough issued secret­ly. As a bid­der, you do not get to see any of this. You will no longer be called, you will no longer be on any bid­ders list. So it’s get­ting qui­et around your busi­ness. What to do? In most cas­es, it is advis­able to first ask why you are no longer being com­mis­sioned. As a rule, the con­tract­ing author­i­ty will then also inform you of the rea­sons. And then? Jurispru­dence sets high require­ments for award bar­ri­ers, both in terms of form and con­tent. For exam­ple, mere inves­tiga­tive pro­ce­dures are usu­al­ly not suf­fi­cient. In our expe­ri­ence, most pro­cure­ment bar­ri­ers do not meet the strin­gent require­ments of case law, as well as the admin­is­tra­tive decrees that occa­sion­al­ly exist. So con­sult with us if you are affect­ed by a pro­cure­ment freeze. Because we know when a pro­cure­ment freeze holds and when it does­n’t — and what can be done about an ille­gal pro­cure­ment freeze.

Pro­cure­ment block­ing and self-clean­ing

Some­times, the rea­son for the block­ing is a seri­ous issue. Tax­es were not paid, crimes were com­mit­ted. In such cas­es, it is rec­om­mend­ed to per­form self-clean­ing. This may require a deep inter­ven­tion into the orga­ni­za­tion­al struc­tures of your com­pa­ny or just the replace­ment of indi­vid­ual employ­ees, the devel­op­ment of orga­ni­za­tion­al direc­tives or even the estab­lish­ment of a — bet­ter — com­pli­ance sys­tem. As lawyers spe­cial­iz­ing in pub­lic pro­cure­ment law, we can assess what is required in each indi­vid­ual case and work with you to imple­ment it. This also includes any rep­re­sen­ta­tion that may become nec­es­sary vis-à-vis the Com­pe­ti­tion Reg­is­ter.

Pro­cure­ment block and com­pen­sa­tion

If you have been the vic­tim of an unjus­ti­fied pro­cure­ment block, you have usu­al­ly also lost out on con­tracts. We know of cas­es in which the bid­der is in first place in the eval­u­a­tion sequence and then receives the terse noti­fi­ca­tion that there is a pro­cure­ment block against him, which is why the con­tract is award­ed to the sec­ond-place bid­der. Con­stel­la­tions in which the bid­der was com­mis­sioned for years in a ser­i­al pro­ce­dure, but is then removed from the dis­tri­b­u­tion pro­ce­dure due to alleged vio­la­tions of the law, are equal­ly sus­cep­ti­ble to lia­bil­i­ty. In all these con­stel­la­tions, it is part of the stan­dard prac­tice of our law firm to also inform you about claims for dam­ages. Take this oppor­tu­ni­ty and inform your­self.

We con­duct basic train­ing

Pub­lic pro­cure­ment law is divid­ed into dif­fer­ent pro­ce­dur­al codes, some of which have sim­i­lar and some of which have dif­fer­ent rules for struc­tur­ing an award pro­ce­dure. We train sales, key account man­agers, bid man­agers, in-house coun­sel, esti­ma­tors, own­ers, gen­er­al man­agers and board mem­bers in the basics of pro­cure­ment law. Only those who know the basics of pub­lic pro­cure­ment law can judge how to use their pro­ce­dur­al rights most effec­tive­ly for their com­pa­ny. Just ask us what we have on offer for you. We find togeth­er.

Prob­lem ori­ent­ed train­ings

Pure knowl­edge trans­fer is no longer appro­pri­ate in voca­tion­al edu­ca­tion. What is need­ed is appli­ca­tion knowl­edge. From our point of view, this means one thing above all: train­ing. Togeth­er with your HR depart­ment, if it is respon­si­ble for train­ing issues, or with your exter­nal ser­vice provider, we devel­op a port­fo­lio of appli­ca­tion-ori­ent­ed train­ing cours­es for you. This can be a case study that is solved under the guid­ance of one of our spe­cial­ist lawyers for pub­lic pro­cure­ment law in a 1‑day work­shop. Or a ques­tion-and-answer game with more than 100 exam­ple cas­es that increas­es the pres­ence knowl­edge of your con­tract­ing experts and bid man­agers. We would also be hap­py to update this train­ing for you and your employ­ees or store it per­ma­nent­ly as a video course, so that not only those who work for you here today ben­e­fit from it. But also all future gen­er­a­tions of employ­ees. Just con­tact us.

Immer­sion train­ing? Glad­ly!

Cer­tain top­ic seg­ments require more in-depth study. If, for exam­ple, you reg­u­lar­ly con­clude frame­work agree­ments, it is advis­able to spend approx­i­mate­ly four to six hours on the award­ing of frame­work agree­ments. Often, in joint appoint­ments with the bid­der, we also review award doc­u­ments and con­tract notices that are rel­e­vant to the bid­ding com­pa­ny. Through this direct exchange, we ensure a fast, uncom­pli­cat­ed trans­fer of knowl­edge. The employ­ees of the bid­ding com­pa­ny who deal with ten­ders can usu­al­ly imple­ment the find­ings from these appoint­ments imme­di­ate­ly.