03. cur­rent case law: admis­si­bil­i­ty of an over­all award, require­ments for the doc­u­men­ta­tion of an over­all award, sup­ply of spe­cial­ist soft­ware

In prin­ci­ple, each con­tract­ing author­i­ty is free to deter­mine the ser­vice to be put out to ten­der accord­ing to its indi­vid­ual ideas and to open com­pe­ti­tion only in this form. There­fore, it alone decides on the scope of the ser­vices to be award­ed and, if nec­es­sary, whether sev­er­al ser­vice units are to be formed and award­ed sep­a­rate­ly.
In the review pro­ceed­ings, the deci­sion of the con­tract­ing author­i­ty is to be reviewed sole­ly as to whether it was not based on extra­ne­ous, arbi­trary or dis­crim­i­na­to­ry con­sid­er­a­tions, based on its hori­zon of knowl­edge at the time of the deci­sion on the deter­mi­na­tion of the sub­ject mat­ter of the pro­cure­ment; in this respect, the con­tract­ing author­i­ty has con­sid­er­able lee­way in its assess­ment.
If the deter­mi­na­tion of the pro­cure­ment require­ment is made on the basis of objec­tive and order-relat­ed rea­sons in a non-dis­crim­i­na­to­ry man­ner, any result­ing restric­tive effect on com­pe­ti­tion must gen­er­al­ly be accept­ed.
The free­dom to autonomous­ly deter­mine pro­cure­ment require­ments is restrict­ed by the fact that, for rea­sons of strength­en­ing small and medi­um-sized enter­pris­es, ser­vices are gen­er­al­ly to be award­ed in lots, Sec­tion 97 (1). 4 P. 2 GWB.
The first pre­req­ui­site is that the ten­dered ser­vice can be award­ed in batch­es. For this deter­mi­na­tion, it is of par­tic­u­lar impor­tance whether a sep­a­rate sup­pli­er mar­ket with spe­cial­ized com­pa­nies has devel­oped for the spe­cif­ic ser­vice; in this respect, the cur­rent mar­ket con­di­tions are of essen­tial impor­tance.
An over­all award shall only be per­mis­si­ble as an excep­tion if eco­nom­ic or tech­ni­cal rea­sons so require, Sec­tion 97 para. 4 P. 3 GWB. How­ev­er, the pro­vi­sion does not stip­u­late that an over­all award may only be made if there is an objec­tive­ly com­pelling rea­son. How­ev­er, in the case of an intend­ed over­all award, the con­tract­ing author­i­ty has to deal in a spe­cial way with the basic require­ment of a spe­cial­ized lot award and the rea­sons speak­ing against it in the spe­cif­ic case and to car­ry out a com­pre­hen­sive weigh­ing of the con­flict­ing inter­ests, as the result of which the tech­ni­cal and eco­nom­ic rea­sons speak­ing in favor of an over­all award must pre­vail.
No gen­er­al rules can be estab­lished for the degree of pre­dom­i­nance. Nor is the appli­cant, even if it is a medi­um-sized com­pa­ny, enti­tled to demand that the respon­dent form lots which are suit­able for it and which fit into its bid port­fo­lio (cf. Sen­ate, deci­sion of 06.04.2011, 15 Verg 3/11 — juris para. 57).

The review shall be based on the con­sid­er­a­tion doc­u­ment­ed in the award mem­o­ran­dum in a time­ly man­ner.
The coor­di­na­tion effort result­ing from a lot award as well as the risks aris­ing at inter­faces are to be includ­ed in the deci­sion as eco­nom­ic aspects. Tech­ni­cal rea­sons are those that make it nec­es­sary to inte­grate all ser­vice steps in one hand in order to achieve the lev­el of qual­i­ty aimed for by the client. How­ev­er, the ten­der­ing, inspec­tion and coor­di­na­tion costs gen­er­al­ly asso­ci­at­ed with the award of spe­cial­ist lots, as well as high­er war­ran­ty costs, can­not in them­selves jus­ti­fy an over­all award, because these are addi­tion­al costs inher­ent in the award of lots and typ­i­cal­ly asso­ci­at­ed with them, which must gen­er­al­ly be accept­ed in accor­dance with the pur­pose of the law.

Con­trary to the opin­ion of the Pro­cure­ment Cham­ber, it is not nec­es­sary for a prop­er weigh­ing to set out in writ­ing a com­par­i­son of the pos­i­tive effects of an over­all award and its neg­a­tive effects in the award notice. This over­stretch­es the require­ments for doc­u­men­ta­tion.

The respon­dent has com­pre­hen­si­bly tak­en as a basis that, due to the com­plex­i­ty of the respec­tive sup­port and imple­men­ta­tion ser­vices and the host­ing effort asso­ci­at­ed with data cen­ter oper­a­tion, it is nec­es­sary to ensure the most uni­form pos­si­ble oper­at­ing and sys­tem archi­tec­ture, in par­tic­u­lar also against the back­ground of the legal adjust­ments required due to fre­quent changes in the law. It is obvi­ous that this is bet­ter ensured when award­ing the con­tract to one provider, even if the soft­ware for the spe­cial­ist appli­ca­tions in social ser­vices and youth wel­fare should have dif­fer­ent sys­tem archi­tec­tures, as the appli­cant claims. It is also under­stand­able that the flex­i­ble deploy­ment of employ­ees with­in the munic­i­pal­i­ties is facil­i­tat­ed by iden­ti­cal or near­ly iden­ti­cal sys­tem archi­tec­tures and oper­at­ing pro­ce­dures, and that this speaks in favor of an over­all con­tract award. The require­ment of a uni­form oper­at­ing log­ic was not raised by the respon­dent for the first time in the award review pro­ceed­ings. Already in the award notice it was exem­plar­i­ly shown at a pro­cure­ment need of the dis­trict … that the cus­tomer expects a uni­form ser­vice. The respon­dent only elab­o­rat­ed on this argu­ment in the review pro­ceed­ings.

The sig­nif­i­cant finan­cial bur­dens cit­ed by the respon­dent also jus­ti­fy the over­all award. An eco­nom­ic rea­son for the over­all award is that the addi­tion­al costs lead to a sig­nif­i­cant increase in the cost of the ser­vice to its cus­tomers. What is required is a project-relat­ed increase in cost; gen­er­al eco­nom­ic con­sid­er­a­tions and strate­gic ori­en­ta­tion, on the oth­er hand, are not enough. The respon­dent has tak­en this into account. The rough cal­cu­la­tions pro­vide a viable basis for the Respon­den­t’s pre­dic­tion that the over­all award will result in sig­nif­i­cant cost sav­ings com­pared to a lot award. In this way, the respon­dent takes into account the over­all objec­tive of pro­cure­ment law to pro­cure eco­nom­i­cal­ly. For eco­nom­ic and tech­ni­cal rea­sons, the ser­vice must not be frag­ment­ed to such an extent that a uni­form over­all ser­vice can only be pro­vid­ed with dis­pro­por­tion­ate effort.

OLG Karl­sruhe (award­ing sen­ate), deci­sion of 29.04.2022 — 15 Verg 2/22 (over­rul­ing the above-men­tioned deci­sion of the VK Baden-Würt­tem­berg)

Entry 04 (IT spe­cial­ist ser­vice)

Case law: Inter­pre­ta­tion of the spec­i­fi­ca­tions in the IT con­text, exclu­sion of a bid­der due to changes to the ten­der doc­u­ments

Exclu­sion of a bid due to changes or addi­tions to the ten­der doc­u­ments pur­suant to Sec­tion 57 para. 1 No. 4 ARC may also be jus­ti­fied if, accord­ing to the under­stand­ing of an infor­ma­tion tech­nol­o­gy layper­son, a bid was sub­mit­ted which cor­re­sponds to the spec­i­fi­ca­tions. The deci­sive fac­tor for deter­min­ing whether an amend­ment or sup­ple­ment is present is the objec­tive recip­i­en­t’s hori­zon of a poten­tial bid­der from the addressed group of bid­ders of the respec­tive invi­ta­tion to ten­der.
The descrip­tion of the respec­tive intend­ed use can there­fore be inter­pret­ed in accor­dance with Sec­tions 133 and 157 of the Ger­man Civ­il Code to mean that prod­ucts must nec­es­sar­i­ly have cer­tain func­tion­al­i­ties, even if these are not explic­it­ly list­ed in the per­for­mance descrip­tion.
It is true that the per­for­mance descrip­tion must be as clear as pos­si­ble, § 121 para. 1 sen­tence 1 GWB. How­ev­er, this does not mean that the per­for­mance spec­i­fi­ca­tion must nec­es­sar­i­ly be designed in such a way that it con­tains only one pos­si­ble inter­pre­ta­tion, tak­ing into account all log­i­cal pos­si­bil­i­ties. Even if a ser­vice descrip­tion is care­ful­ly pre­pared, it can­not be ruled out that minor ambi­gu­i­ties may occur. The lim­it to a lack of unam­bi­gu­i­ty is only exceed­ed if sev­er­al pos­si­ble inter­pre­ta­tions remain even after efforts at inter­pre­ta­tion by expert com­pa­nies.
If the cus­tomer spec­i­fies that servers are to be pro­cured for a high-per­for­mance het­ero­ge­neous com­put­ing clus­ter for AI appli­ca­tions, the spec­i­fi­ca­tions must be inter­pret­ed in this con­text.
Exclu­sion of a bid­der is there­fore jus­ti­fied if the bid­der offers ser­vices that do not fit the require­ments pro­file of the invi­ta­tion to ten­der. This also applies if, from the point of view of an IT lay­man, the offer cor­re­sponds to the spec­i­fi­ca­tions, since the objec­tive cri­te­ria of the spec­i­fi­ca­tions for the goods in them­selves are ful­filled. How­ev­er, if it is clear to an expert bid­der from the IT sec­tor that the goods are not suit­able for the assumed pur­pose from the out­set (in this case, due to the inabil­i­ty to arrange and inter­con­nect more than two GPUs), it can be exclud­ed with bids that do not meet the per­for­mance cri­te­ria.

OLG Karl­sruhe (award­ing sen­ate), deci­sion of 29.04.2022 — 15 Verg 2/22 (over­rul­ing the above-men­tioned deci­sion of the VK Baden-Würt­tem­berg)