Com­pen­sa­tion for dam­ages in the event of an incor­rect rejec­tion let­ter

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.

Deci­sion:

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.

Con­clu­sion:

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.