A small case from our legal practice: The bidder, our client, receives a rejection letter and it is simply wrong, but this only becomes apparent later. What claims does the bidder have then? If, after receiving this letter, the bidder has unnecessarily commissioned a lawyer to review the award decision — unnecessarily, because the award decision was in fact quite different and the rejection letter was therefore simply wrong — then the bidder will be reimbursed for the lawyer’s fees. At least this is what the Regional Court of Chemnitz ruled in its final judgment of November 29, 2022 (Case No. 3 S 52/22).
Facts of the case:
In a rejection letter, the client informed our company — which had applied for a striping contract — that it had achieved a top quality score, but that another bidder had offered better and that this bidder would therefore be awarded the contract. Our client did not really want to believe this, because she could hardly have been outbid in terms of quality, based on the client’s communication, and she had also bid very well in terms of price. She therefore turned to us as a law firm and we sent a short letter of complaint on her behalf, in which we criticized price-related aspects, including the fact that the client could at least not have been adequately underbid. The answer of the client was not long in coming. He informed us that in reality the quality score was much lower than stated in the rejection letter and that the client should therefore not be awarded the contract. A little surprised, we discussed this turn of events with the bidder. And he said quite dryly that he could imagine it. His concepts had not seemed so good to him himself. If he had known right away that he would in fact have received much lower quality points, he would frankly never have commissioned us. To our ears, this sounded like a case of damages. Our client had only incurred the legal costs because of the false rejection letter, in which the quality points had been stated to be much higher than they had actually been awarded. If the client had been told the truth from the beginning, they would never have hired us. So we claimed our legal fees as damages.
With success! After the first instance did not really like to follow our argumentation, the Regional Court Chemnitz saw it like us (judgment of 29.11.2022 — 3 S 52/22). The Regional Court based its decision on Sections 280 (1), 311 (1) No. 1, 241 (2) BGB. By inadvertently providing the wrong information about the score, the contracting authority had violated the duty of consideration arising from the pre-contractual obligation. This prompted the bidder, our client, to have the award decision reviewed by our law firm. Therefore, the bidder was entitled to compensation for its attorney’s fees, since this damage was caused by the client’s principal.
For public clients, this decision is momentous. You must provide correct information under all circumstances, otherwise you run the risk of being held liable for damages. Also be careful if you provide incomplete information. This can also oblige you — in individual cases — to pay damages. Therefore, submit your rejection letters to a lawyer for review if you fear a reprimand. The following applies to bidders and applicants: You will often be reimbursed for legal fees. Therefore, do not be afraid to go to a lawyer and have incorrect award decisions reviewed.
*This legal tip is no substitute for legal advice in individual cases. By its very nature, it is incomplete, it does not relate to your case, and it also represents a snapshot, as the legal basis and case law change over time. It cannot and does not cover all conceivable constellations, serves maintenance and initial orientation purposes and is intended to motivate you to clarify legal issues at an early stage, but not to discourage you from doing so.