Did the bid­der want to devi­ate — or not? The deci­sive ques­tion when exclud­ing a bid.

Whether a ten­der that devi­ates from the ten­der doc­u­ments must or may be exclud­ed is one of the per­ma­nent­ly tricky ques­tions in the award pro­ce­dure. It reg­u­lar­ly ends up before the review bod­ies.

Dr. Christoph Kins has ana­lyzed three recent deci­sions — OLG Düs­sel­dorf, OLG Karl­sruhe and VK Sach­sen — in the pro­cure­ment blog of the Ger­man Pro­cure­ment Net­work (DVNW) and worked out what real­ly mat­ters.

The core: It’s not the clause that counts, but the will.

In all three cas­es, the ten­der doc­u­ments con­tained so-called gen­er­al terms and con­di­tions defense claus­es. In all three cas­es, this did not play a deci­sive role.

The actu­al test point is a dif­fer­ent one: Did the bid­der want to devi­ate — or not? This is what the inter­pre­ta­tion of the struc­ture and con­tent of the offer in all three deci­sions boils down to.

The indi­ca­tions that mat­ter are very spe­cif­ic: Is the cov­er let­ter indi­vid­u­al­ly addressed? Does the offer explic­it­ly refer to the devi­at­ing doc­u­ment? Do the price details extend to the devi­a­tion? Does the devi­a­tion have its own sub­di­vi­sion num­ber — or is it con­tained in gen­er­al terms and con­di­tions labeled as such? Did it only come to light in the clar­i­fi­ca­tion? Does it have more of an adver­tis­ing effect?

The answers to these ques­tions are deci­sive. There is no short­cut.

What this means in prac­tice

The fol­low­ing applies to bid­ders: Any­one sub­mit­ting their own con­cepts, sam­ple let­ters or draft con­tracts when prepar­ing a bid should check care­ful­ly whether and where they devi­ate from the ten­der doc­u­ments. The assur­ance in the let­ter of offer that every­thing will be accept­ed does not can­cel out spe­cif­ic devi­a­tions else­where.

The fol­low­ing applies to con­tract­ing author­i­ties: GTC defense claus­es do not solve the prob­lem — nei­ther in the award pro­ce­dure nor, as the arti­cle makes clear, in sub­se­quent con­trac­tu­al dis­putes. If you want to doc­u­ment a devi­a­tion as a rea­son for exclu­sion, you real­ly have to take a close look at the ten­der. And any­one who regards com­pre­hen­sive claus­es as a safe­guard is sit­ting on a decep­tive false sense of secu­ri­ty.

That is, in the words of the arti­cle: hard work. But there is no way around it.

Read and rate the full arti­cle

The com­plete analy­sis of the three deci­sions — with facts, rea­sons and clas­si­fi­ca­tion for each judg­ment — can be found in the DVN­W’s pro­cure­ment blog:

→ To the arti­cle in the DVNW award­ing blog

Read, vote and com­ment there now.