Why you need an expe­ri­enced legal expert

Why the prepa­ra­tion of the award pro­ce­dure is so impor­tant

Pro­cure­ment pro­ce­dures are pre­con­di­tion-rich not only in fac­tu­al but also in legal terms. If you miss the mark here, you put your project at risk. Mis­takes in the con­tract design catch up with the con­tract­ing author­i­ty in the exe­cu­tion phase. Improp­er­ly draft­ed award doc­u­ments already cause prob­lems dur­ing the award pro­ce­dure, but at the lat­est dur­ing audit­ing by audi­tors or oth­er audit­ing author­i­ties or even before the Pro­cure­ment Cham­ber.

Here you will find fur­ther infor­ma­tion:

The sys­tem of pub­lic pro­cure­ment review by pub­lic pro­cure­ment tri­bunals and high­er region­al courts

The audit­ing of pro­cure­ment pro­ce­dures by audit bod­ies, audit offices and courts of audi­tors

The types of pro­cure­ment pro­ce­dures

Before ini­ti­at­ing a pro­cure­ment pro­ce­dure, it is always nec­es­sary to clar­i­fy which pro­cure­ment pro­ce­dure type is rel­e­vant. This most­ly depends on the type of ser­vice and the order val­ue. How­ev­er, an excep­tion­al cir­cum­stance may also be rel­e­vant, accord­ing to which you may con­duct a less com­pet­i­tive, faster award pro­ce­dure or even award the con­tract direct­ly. In order to clar­i­fy these issues with legal cer­tain­ty, knowl­edge of the rel­e­vant pro­vi­sions of pro­cure­ment law and case law is required. That is why it is advis­able to con­sult a spe­cial­ist lawyer for pub­lic pro­cure­ment law. We are hap­py to be there for you.

Here you will find fur­ther infor­ma­tion:

Types of pro­ce­dure above the EU thresh­olds

Types of pro­ce­dure below the EU thresh­olds

Types of ben­e­fits — what to do with mixed ben­e­fits?

Excep­tion­al cir­cum­stances for switch­ing to the nego­ti­at­ed pro­ce­dure or nego­ti­at­ed award (in prepa­ra­tion)

The rerail of your pro­cure­ment

When think­ing about the right type of award pro­ce­dure, it often becomes appar­ent that dif­fer­ent trades are to be pro­cured. Bei den Über­legun­gen zur richti­gen Art des Ver­gabev­er­fahrens zeigt sich oft, dass unter­schiedliche Gew­erke zu beschaf­fen sind. And so what at first glance appears to be a sim­ple pur­chas­ing pro­ce­dure turns into a cas­cade of suc­ces­sive and par­al­lel award pro­ce­dures, with which the most diverse ser­vice providers are approached. How a rerail­ing can be done in a mean­ing­ful way and how your pro­cure­ment pro­ce­dures are to be relat­ed to each oth­er, this is a ques­tion best to be clar­i­fied by a spe­cial­ist lawyer. Feel free to con­sult us at any time.

Here you will find fur­ther infor­ma­tion:

The oblig­a­tion to draw lots

Pro­tec­tion for SMEs

Over­all award — yes or no?

Some­times pro­cure­ment expe­ri­ence advis­es pre­cise­ly not to divide by lots, but to make an over­all award. We are think­ing of gen­er­al plan­ners, total con­trac­tors and total con­trac­tors, gen­er­al con­trac­tors and gen­er­al con­trac­tors. What sounds good, how­ev­er, is often enough con­trary to pro­cure­ment law. You should have an expe­ri­enced law firm for pub­lic pro­cure­ment law check whether an over­all award can be made by way of excep­tion.

Here you will find fur­ther infor­ma­tion:

When is an over­all award per­mis­si­ble? (In prepa­ra­tion)

What to look out for when award­ing GU-GÜ/TU-TÜ con­tracts? (In prepa­ra­tion)

The cross-lot order val­ue deter­mi­na­tion

When you set up your pro­cure­ment and form spe­cial­ty or area lots, how do you actu­al­ly deter­mine the con­tract val­ue? Lot-sharp or lot-span­ning? Since a cor­rect and up-to-date con­tract val­ue deter­mi­na­tion is manda­to­ry to ini­ti­ate a pro­cure­ment pro­ce­dure, you must also deal with it. The best thing to do is to let us help you with this.

Here you will find fur­ther infor­ma­tion:

Order val­ue, val­u­a­tion price, invoice price (in prepa­ra­tion)

Why is the order val­ue so impor­tant? (In prepa­ra­tion)

Prin­ci­ples of con­tract val­u­a­tion (in prepa­ra­tion)

Self-dec­la­ra­tions, con­tract per­for­mance con­di­tions, award cri­te­ria — and what else?

Prepa­ra­tion of the con­tract award includes, among oth­er things, the prepa­ra­tion of rel­e­vant self-dec­la­ra­tions, the def­i­n­i­tion of ver­i­fi­able con­tract per­for­mance con­di­tions, the deter­mi­na­tion of legal­ly com­pli­ant suit­abil­i­ty and award cri­te­ria and, of course, the legal review of the per­for­mance spec­i­fi­ca­tion, which is the heart of every con­tract award. Don’t leave any­thing to chance here, but ask for spe­cial­ist legal advice.

Here you will find fur­ther infor­ma­tion:

The apti­tude test

The prof­itabil­i­ty assess­ment

Social and envi­ron­men­tal con­tract per­for­mance con­di­tions

Legal require­ments for the ser­vice descrip­tion (in prepa­ra­tion)

Rely on legal­ly com­pli­ant con­tracts

Inef­fec­tive claus­es lead to con­sid­er­able legal uncer­tain­ty and oblig­a­tions with seri­ous con­se­quences. As a pub­lic sec­tor client, you there­fore ben­e­fit from mod­ern and at the same time tai­lor-made con­tracts that har­mo­nize cur­rent legal require­ments with indi­vid­ual needs. Even if you are oblig­ed to apply mod­el con­tracts (e.g. EVB IT), it depends on their design in detail. Our experts will be hap­py to help you with the draft­ing of your con­tract.

Here you will find fur­ther infor­ma­tion:

Nego­ti­at­ing in the award pro­ce­dure (in prepa­ra­tion)

Pro­hi­bi­tions on nego­ti­a­tion in the award pro­ce­dure (in prepa­ra­tion)

Mod­el con­tracts in the award pro­ce­dure (in prepa­ra­tion)

Notice or invi­ta­tion to bid?

In fact, only a small pro­por­tion of pro­cure­ment pro­ce­dures are ini­ti­at­ed by a con­tract notice, even in the Offi­cial Jour­nal of the Euro­pean Union. Most pro­cure­ment pro­ce­dures are opened by an invi­ta­tion to bid. As a spe­cial­ized law firm, we will be hap­py to advise you on which approach you should take, what the announce­ment should con­tain and which for­mu­la­tions are appro­pri­ate in the invi­ta­tion to ten­der. Do not hes­i­tate to con­tact us.

Fur­ther infor­ma­tion on the con­tract notice:

The con­tract notice

Bid­der ques­tions — and some­times rep­ri­mands

Dur­ing a pro­cure­ment process, bid­der ques­tions very often arise. These ques­tions are use­ful. Indeed, they draw the atten­tion of the con­tract­ing author­i­ty to gaps and ambi­gu­i­ties. Indeed, they draw the atten­tion of the con­tract­ing author­i­ty to gaps and ambi­gu­i­ties. Bid­der ques­tions must be answered in a time­ly man­ner and — in prin­ci­ple — to all inter­est­ed par­ties. So the answer is what mat­ters. If you are not sure about this, please con­tact us in con­fi­dence. All the more so if a bid­der does not mere­ly ask, but objects to your spec­i­fi­ca­tions on grounds of pro­cure­ment law.

Ask­ing bid­der ques­tions cor­rect­ly (in prepa­ra­tion)

Com­plaints in the award pro­ce­dure (in prepa­ra­tion)

The open­ing of ten­ders and the for­mal exam­i­na­tion

Requests to par­tic­i­pate and bids must be prop­er­ly opened and stored. In addi­tion, this must be doc­u­ment­ed in a com­pre­hen­si­ble man­ner. You can find out how best to do all this by talk­ing to us — if you don’t want us to do these tasks for you right away. The open­ing is usu­al­ly fol­lowed by a for­mal inspec­tion. Are all doc­u­ments avail­able? Has the offer been received in due form and time? Has the bid­der mod­i­fied the ten­der doc­u­ments? A series of pur­pose­ful, sen­si­ble audit points, which we will work through for you one by one if you instruct us to do so.

Pre­sen­ta­tions, test­ing and nego­ti­a­tions

Nego­ti­a­tions are per­mit­ted in some types of pro­ceed­ings and not in oth­ers. Some­times nego­ti­a­tions, although per­mis­si­ble, are super­flu­ous. Then again, the pub­lic client wants cer­tain bid con­tents to be pre­sent­ed to him oral­ly. Or that he can check them in the award pro­ce­dure, because paper, as we all know, is patient. We know the legal basis and case law on under what con­di­tions and in what form pre­sen­ta­tion, nego­ti­a­tion and test­ing can take place. Turn to us with con­fi­dence, and we will guide you through these waters as well.

The prepa­ra­tion of the award and the con­clu­sion of the con­tract — or the can­cel­la­tion of the award pro­ce­dure

Pro­cure­ment pro­ce­dures end in two ways. Either by sur­charge, i.e. by way of con­clu­sion of the con­tract, or by can­cel­la­tion. In both cas­es, a wide range of infor­ma­tion and form require­ments must be observed. Also, the draft con­tract announced in the award pro­ce­dure must be adapt­ed to the win­ning bid­der. So leave noth­ing to chance here and ask us as your pro­cure­ment and con­tract law advi­sors.

The han­dling of award pro­ce­dures as an exter­nal award­ing author­i­ty — our offer for you

We are hap­py to accom­pa­ny your pro­cure­ment as a con­sul­tant in the back­ground. So if you would like to take the numer­ous mea­sures in the award pro­ce­dure your­self, either to a large extent or only selec­tive­ly, this is no prob­lem for us. As a spe­cial ser­vice, how­ev­er, we offer you some­thing more: the com­plete han­dling of your award pro­ce­dure. It is true that you will still have to make all major deci­sions your­self. Because you are the client, and we are only your con­sul­tants. But in this ser­vice we do not only take care of the legal prepa­ra­tion of the essen­tial deci­sions for you. Instead, we take care of all the admin­is­tra­tive aspects of the pro­cure­ment process so that your resources are bur­dened as lit­tle as pos­si­ble.

Why you should seek the help of a spe­cial­ist lawyer in the case of a review

Pro­cure­ment review pro­ce­dures do not occur too often. There are about 1,000 of them per year through­out Ger­many. Mea­sured against the vol­ume of awards, this is rather low. All the more annoy­ing when a con­tract­ing author­i­ty “catch­es” a review pro­ce­dure. The goal should then be to end the review process as quick­ly as pos­si­ble, whether through pro­ce­dur­al suc­cess or through a swift and com­pre­hen­sive rem­e­dy. This is because the con­tract may not be award­ed and the award pro­ce­dure may not be ter­mi­nat­ed dur­ing the review pro­ceed­ings. One also speaks of the block­ing effect of the review pro­ce­dure. Our pub­lic pro­cure­ment law firm can help you break this log­jam as quick­ly as pos­si­ble and keep you on sched­ule if pos­si­ble.

With the rebuke it starts

The bid­der con­duct­ing the review must first raise a com­plaint. With­out a com­plaint, the appli­ca­tion for review is usu­al­ly already inad­mis­si­ble. So if you receive a rep­ri­mand as a con­tract­ing author­i­ty, be pre­pared for a review process to ensue. We at abante Recht­san­wälte have some expe­ri­ence in dis­cour­ag­ing bid­ders from ini­ti­at­ing a pro­cure­ment review pro­ce­dure, for instance by point­ing out the unsuc­cess­ful­ness of their objec­tions, the cost risks, etc. You are wel­come to use our expe­ri­ence for your award­ing as well.

The inspec­tion of files before the Pro­cure­ment Cham­ber

Once the request for review has been filed, the bid­der usu­al­ly sub­mits a request for inspec­tion of files. But even inde­pen­dent­ly of this, the Pro­cure­ment Cham­ber wants to know what the request­ing bid­der is con­cerned with — and requests the award file from you. The dead­line for hand­ing over the award file is reg­u­lar­ly extreme­ly short. Some­times it is only 1 or 2 days. Do you know exact­ly what has to be part of the award file and what not and what you there­fore have to hand over to the award­ing cham­ber? We do. There­fore, do not hes­i­tate and just ask us.

The review pro­ce­dure as sum­ma­ry pro­ceed­ings

The pub­lic pro­cure­ment tri­bunals are required to con­clude the review pro­ceed­ings with­in five weeks. This is not always suc­cess­ful. How­ev­er, this short deci­sion peri­od makes it clear that things can and should move quick­ly. This also leads to par­tic­u­lar time pres­sure for the par­ties involved in the pro­ce­dure, not least the con­tract­ing author­i­ty. Because he has to place his argu­ment very quick­ly if he wants to be heard. How­ev­er, if you are not sure whether you will be able to make all the points favor­able to you in a con­vinc­ing man­ner with­in this short time, just con­tact us. We have expe­ri­ence from a three-dig­it num­ber of review pro­ceed­ings. Short dead­lines are our busi­ness.

Pro­ce­dur­al requests, cur­ing of doc­u­men­ta­tion errors, rep­e­ti­tion of pro­ce­dur­al steps.

Not every review process can be avoid­ed or ter­mi­nat­ed quick­ly. Some­times the con­tract­ing author­i­ty has to appeal to the Pro­cure­ment Cham­ber to allow ear­ly action. From time to time, pro­ce­dur­al steps should sim­ply be repeat­ed because they have not been prop­er­ly doc­u­ment­ed or have not tak­en place at all. No mat­ter what it is: We know the pro­ce­dur­al law and all rea­son­able pos­si­bil­i­ties of action and exhaust them very quick­ly togeth­er with you.

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

A lot. Pub­lic con­tract­ing author­i­ties may be liable to pay dam­ages to bid­ders if they 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 mis­takes you’d bet­ter not make. This is because they can even lead to a claim for com­pen­sa­tion for lost prof­it.

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. Whether or not you, as a pub­lic con­tract­ing author­i­ty, are oblig­ed to pay dam­ages is best clar­i­fied togeth­er with us as your spe­cial­ist law firm for pub­lic pro­cure­ment law. Please call us before the can­cel­la­tion and not after.

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

Please imag­ine the fol­low­ing case: You exclude the first-place win­ner because he has — alleged­ly — com­mit­ted a for­mal error. You then award the con­tract to the bid of the run­ner-up. For two years, noth­ing hap­pens, you do not think about this award pro­ce­dure for a long time. But then you receive a let­ter from the first-placed com­pa­ny at the time, demand­ing com­pen­sa­tion for the lost prof­it and the con­tri­bu­tion to gen­er­al busi­ness expens­es. Rea­son: The exclu­sion of his bid was unjus­ti­fied, so you should have award­ed the con­tract to him — and not to the run­ner-up at the time. If this exam­ple case has nev­er hap­pened to you, be hap­py. Many pub­lic sec­tor clients know it all too well. Pro­tect your­self from this and ask a spe­cial­ist lawyer for pub­lic pro­cure­ment law from our law firm in crit­i­cal sit­u­a­tions of the award pro­ce­dure, for exam­ple when you have to exclude the first-placed bid­der. We are also hap­py to defend you against unfound­ed claims for dam­ages.

The avoid­ance of claims for dam­ages as pro­cure­ment com­pli­ance

Your goal as a con­tract­ing author­i­ty should be to avoid claims for dam­ages at all costs. Because pub­lic mon­ey is scarce mon­ey, and you have noth­ing to give away. To ensure that you suc­ceed, we are hap­py to help you estab­lish pro­cure­ment com­pli­ance. We show you in detail in which cas­es you have to expect an increased lia­bil­i­ty risk and how you can min­i­mize this risk. 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 often “dis­cov­ers” for the first time that he is hin­dered in the exe­cu­tion of his ser­vices, that meth­ods of exe­cu­tion envis­aged by the client are alleged­ly impos­si­ble or that he needs var­i­ous sup­ple­men­tary orders in order to bring about the desired suc­cess of the ser­vice. Since pub­lic clients do not spend their own mon­ey, they are always well advised to close­ly scru­ti­nize their con­trac­tors’ pur­port­ed claims. This some­times requires spe­cial­ist legal exper­tise. You are wel­come to con­tact us.

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 con­trac­tor as to whether and, if so, what remu­ner­a­tion is to be pro­vid­ed for this. Some pub­lic-sec­tor clients act com­plete­ly inde­pen­dent­ly in this regard, while oth­ers rely on exter­nal spe­cial­ist con­sul­tants. In this con­text, 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 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

The prin­ci­ple among con­trac­tors is that it is bet­ter to send one too many obstruc­tion and con­cern notices to the client than one too few. For the pub­lic client, who has to make bud­getary pro­vi­sions and real­ize his project accord­ing to sched­ule, obstruc­tion and con­cern notices are often enough a bless­ing. This is because 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. How­ev­er, notices of obstruc­tion and con­cerns also lead to legal pres­sure to act. They may, for exam­ple, make it nec­es­sary to exert greater influ­ence on sub­con­trac­tors. What exact­ly is rec­om­mend­ed from a legal point of view, you can clar­i­fy with our lawyers. We will give you a pre­cise idea of what action needs to be tak­en and against whom.

The defect case

Defects some­times occur with­in the war­ran­ty peri­od. Or the defects are direct­ly so sig­nif­i­cant that they pre­vent accep­tance. If there are defi­cien­cies, the con­tract­ing author­i­ty must observe and set dead­lines and, if nec­es­sary, even issue for­mal dec­la­ra­tions. Some­times he even has to ter­mi­nate for cause if, for exam­ple, the con­trac­tor fails to rem­e­dy the defects in the ongo­ing project. To ensure that you do not lose any rights here or com­mit any for­mal or dead­line errors, you must pro­ceed in a struc­tured and planned man­ner and observe the case law and con­trac­tu­al require­ments. You should not leave this to your project man­ag­er alone, but call on us as a spe­cial­ist law firm if nec­es­sary.

Not only in-house con­tracts

Are you a pub­lic sec­tor client at all? We will be hap­py to clar­i­fy this for you. And do you real­ly have to put every job out to ten­der? This is often doubt­ful. In-house con­tracts, for exam­ple, are con­tract-exempt. Accord­ing­ly, a con­tract­ing author­i­ty may award a pub­lic con­tract to a legal enti­ty con­trolled by it with­out first putting it out to ten­der. As spe­cial­ist lawyers for pub­lic pro­cure­ment law, we con­tin­u­ous­ly check your in-house capa­bil­i­ty for you and also cre­ate sen­si­ble in-house rela­tion­ships in your com­pa­ny for you.
How­ev­er, orga­ni­za­tion­al con­sult­ing is by no means lim­it­ed to the draft­ing of award-free in-house entrust­ments and in-house exchange agree­ments, which often enough also have to be assessed in terms of EU state aid law. This is because pub­lic-sec­tor clients are some­times mere­ly inter­est­ed in coop­er­at­ing on a selec­tive basis with­out hav­ing to award con­tracts. For exam­ple, they want to give each oth­er a cov­et­ed source code — at a frac­tion of the price that would have to be paid on the mar­ket. Occa­sion­al­ly, pub­lic con­tracts have to be trans­ferred to oth­er legal enti­ties with­out the need for a new ten­der. All these and relat­ed legal issues are part of the orga­ni­za­tion­al con­sult­ing in pub­lic pro­cure­ment law, in which we spe­cial­ize as a law firm spe­cial­iz­ing in pub­lic pro­cure­ment law. So con­tact us with con­fi­dence if you rec­og­nize your­self and your chal­lenges.

Con­tract­ing com­mu­ni­ties and cen­tral con­tract­ing author­i­ties

If sev­er­al con­tract­ing author­i­ties join forces, this may ini­tial­ly serve the pur­pose of joint­ly car­ry­ing out a spe­cif­ic pro­cure­ment. Even at this stage, how­ev­er, a wide vari­ety of ques­tions arise, such as who is the con­tract­ing par­ty and who is mere­ly the autho­rized call par­ty, who is to be the body con­duct­ing the pro­ceed­ings in the award pro­ce­dure, who is to par­tic­i­pate in the award pro­ce­dure in what way and, above all, who is to be involved in the deci­sion-mak­ing process, who is to receive what fund­ing and bear what costs, and so on. Some­times, how­ev­er, the coop­er­a­tion is also aimed at con­tin­u­a­tion. Then, for exam­ple, it is a ques­tion of set­ting up a joint cen­tral pro­cure­ment office. No mat­ter what you intend to do: We know our way around it. From joint pur­chas­ing guide­lines to draft coop­er­a­tion agree­ments, feel free to con­tact us at any time.

Non-pro­cure­ment coop­er­a­tion of pub­lic enti­ties

Pub­lic con­tract­ing author­i­ties coop­er­ate with oth­er pub­lic con­tract­ing author­i­ties, they com­mis­sion their sub­sidiaries or are com­mis­sioned by these sub­sidiaries, the sub­sidiaries in turn com­mis­sion their sis­ters and the lat­ter com­mis­sion the sec­ond-tier sub­sidiaries, and so on. In this way, a com­pli­cat­ed web of exchange-con­trac­tu­al and com­pa­ny-con­trac­tu­al rela­tion­ships is cre­at­ed. It is not uncom­mon for con­sid­er­a­tions of tax law to play a role in addi­tion to those of pub­lic pro­cure­ment law, grant law and com­pa­ny law, for exam­ple with regard to sales tax uni­ty or the right to deduct input tax. At abante, we are not only famil­iar with the motives for these coop­er­a­tions, but also, and above all, with the case law on pub­lic pro­cure­ment, sub­si­dies and grants, and the legal require­ments. We can there­fore work togeth­er with your tax advi­sors to cre­ate an effec­tive orga­ni­za­tion­al solu­tion for you — with a sense of pro­por­tion and in strict com­pli­ance with your eco­nom­ic needs.

Award — and then re-ten­der every time?

In the course of a joint project, needs for change and expan­sion occa­sion­al­ly arise. From the point of view of pro­cure­ment law, the ques­tion then aris­es each time whether the con­tract amend­ment must be put out to ten­der or whether it does not even jus­ti­fy the oblig­a­tion to put the entire con­tract out to ten­der again. These ques­tions are no small mat­ter. Sim­ply award­ing a con­tract mod­i­fi­ca­tion that is sub­ject to award is an unlaw­ful de fac­to award and thus the most seri­ous pro­cure­ment vio­la­tion that a con­tract­ing author­i­ty can com­mit. To avoid this at all costs, it is best to con­tact one of our spe­cial­ist lawyers for pub­lic pro­cure­ment law.

Sig­nif­i­cant changes to the con­tract must be put out to ten­der

The prin­ci­ple is sim­ple: sig­nif­i­cant changes to the con­tract must be put out to ten­der. There­fore, the dis­pute main­ly revolves around the ques­tion of when a con­tract amend­ment is mate­r­i­al and when it is imma­te­r­i­al. Once upon a time, this was answered sole­ly on the basis of ECJ case law (e.g., the Pres­se­text deci­sion). ECJ case law is still sig­nif­i­cant today, and your pro­cure­ment law coun­sel should be aware of it accord­ing­ly. How­ev­er, there are now detailed statu­to­ry reg­u­la­tions in Ger­many — and more and more Ger­man case law from the Pub­lic Pro­cure­ment Tri­bunals and High­er Region­al Courts. All this does not make it any eas­i­er to assess whether a con­tract amend­ment is still imma­te­r­i­al. But all the more excit­ing for the spe­cial­ized lawyers in our firm, whose dai­ly bread includes assess­ing the free­dom to ten­der for con­tract adjust­ments.

Con­trac­tu­al changes can be qual­i­ta­tive or quan­ti­ta­tive in nature

Parts of the case law dif­fer­en­ti­ate accord­ing to whether the con­trac­tu­al change is of a quan­ti­ta­tive or qual­i­ta­tive nature. This also makes sense. For in the case of a pure­ly quan­ti­ta­tive change, the law keeps rea­son­ably clear rules. Here, the legal prac­ti­tion­er must above all keep the rel­e­vant EU thresh­old val­ue in mind as the upper lim­it and research the exact net con­tract val­ue. The assess­ment of qual­i­ta­tive con­tract adjust­ments, on the oth­er hand, is more com­plex. In this con­text, it is reg­u­lar­ly nec­es­sary to make a hypo­thet­i­cal con­sid­er­a­tion, name­ly whether this change, if it had been known from the begin­ning, would have result­ed in a dif­fer­ent award pro­ce­dure and, above all, a dif­fer­ent field of bid­ders. None of these are easy ques­tions, so a pub­lic sec­tor client would be well advised to hedge its bets. And you can do this by con­sult­ing a law firm for pub­lic pro­cure­ment law that knows the pit­falls of the case law very well — like abante Attor­neys at Law.

Sup­ple­men­tary con­tract and announce­ment

Even con­tract adjust­ments that are not sub­ject to award must be neat­ly doc­u­ment­ed and imple­ment­ed. This requires, in addi­tion to a note doc­u­ment­ing the free­dom to award con­tracts in an auditable man­ner, a sup­ple­men­tary order and pos­si­bly even a Europe-wide announce­ment. Some­times it is even advis­able to make two notices, one before the pro­posed change announc­ing the belief that this con­tract change is con­tract-exempt, and anoth­er notice fol­low­ing the con­tract change. Don’t do any­thing wrong here either, and turn to us in con­fi­dence as your spe­cial­ized pro­cure­ment law firm — and do so before the con­tract is adjust­ed, not after.

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 your con­tract­ing author­i­ty, your demand car­ri­ers and your legal depart­ment in the appli­ca­tion of these pro­ce­dur­al reg­u­la­tions. This includes the pre­sen­ta­tion of the areas of appli­ca­tion, the types of pro­ce­dures and the pro­ce­dure specifics and infor­ma­tion require­ments. A sen­si­ble offer for the begin­ner. You can also book in-house train­ing cours­es with us on the basics of pub­lic pro­cure­ment law, such as the scope of appli­ca­tion of the law on the award of con­tracts at the upper thresh­old or the con­cept of the con­tract­ing author­i­ty. This is of par­tic­u­lar inter­est to audit author­i­ties and audit offices, but also to in-house coun­sel who occa­sion­al­ly have to answer ques­tions of a more fun­da­men­tal dimen­sion but do not have to han­dle pro­cure­ment pro­ce­dures. Just ask us what we have 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 com­pris­ing more than 100 sam­ple cas­es that increas­es the class­room knowl­edge of your con­tract­ing experts. 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. For exam­ple, if pub­lic sec­tor clients reg­u­lar­ly award frame­work agree­ments, it is advis­able to spend approx­i­mate­ly four to six hours on the award­ing of frame­work agree­ments. Units involved in the pro­cure­ment of infor­ma­tion tech­nol­o­gy ser­vices, on the oth­er hand, might be inter­est­ed in inten­sive train­ing on IT pro­cure­ment and con­tract law, pos­si­bly even over sev­er­al days. No mat­ter which pro­cure­ment seg­ment you are more close­ly inter­est­ed in: We are so broad­ly posi­tioned in pub­lic pro­cure­ment and con­tract law that we can cov­er all needs. Chal­lenge us.