For bid­ders & con­trac­tors: 5 legal tips for award­ing school trans­porta­tion ser­vices — the sub­se­quent­ly chang­ing route*

You want to par­tic­i­pate in school trans­porta­tion in your dis­trict. And then this: the ten­der doc­u­ments pro­vide for a kind of fluc­tu­a­tion reserve if the routes change sub­se­quent­ly up to a cer­tain extent. Adden­dum? No way!

The prob­lem

The num­ber and com­po­si­tion of the pupils to be trans­port­ed by you may change in the course of a pupil trans­porta­tion con­tract. As a result, the con­trac­tor may have to cov­er longer, but in any case dif­fer­ent, routes. The con­tract­ing author­i­ty, usu­al­ly a coun­ty, is hap­py to require that these changes be fac­tored in up to a cer­tain per­cent­age. How­ev­er, they know only too well that this does­n’t actu­al­ly work out very well.

What to do?

First of all: Don’t just accept it. Act imme­di­ate­ly (prefer­ably with legal sup­port). If you have a prob­lem with the spec­i­fi­ca­tions of a pub­lic con­tract­ing author­i­ty in a pub­lic pro­cure­ment pro­ce­dure, then rep­ri­mand. Do not point out, crit­i­cize, com­plain, or issue “clar­i­fy­ing notices” or “bind­ing con­cretiza­tions.” Do not express your lack of under­stand­ing, do not sug­gest “opti­miza­tions”. But rather: Com­plain. And, please, by the dead­line!

And in terms of con­tent?

Sev­er­al legal ques­tions arise. We will give you an exam­ple: If the dri­ving dis­tance is extend­ed, on the one hand the vari­able costs increase, name­ly the con­sump­tion-depen­dent costs and the hold­ing costs. On the oth­er hand, the con­tri­bu­tion mar­gin to the over­head costs decreas­es, which must be earned, for exam­ple, with a — pos­si­bly offered — dai­ly rate. If, how­ev­er, the equiv­a­lence ratio between ser­vice and ser­vice in return is to be main­tained in this case as well, an increase in the dai­ly rate is inevitable in and of itself. In our opin­ion, a fun­da­men­tal vio­la­tion of the prin­ci­ple of equiv­a­lence can at the same time be a vio­la­tion of the prin­ci­ple of com­pe­ti­tion under pro­cure­ment law. You should there­fore not accept it. Would you like anoth­er exam­ple? If the con­tract­ing author­i­ty does not car­ry out a cross-lot com­pen­sa­tion cal­cu­la­tion — which it usu­al­ly does not do in this pro­cure­ment seg­ment — it priv­i­leges those bid­ders who have bid on as many lots as pos­si­ble. In our legal opin­ion, this is like­ly to be a vio­la­tion of the prin­ci­ple of equal treat­ment under pub­lic pro­cure­ment law.

Any ques­tions?

Feel free to call any­time at 0341 910 28405. “Abante Recht­san­wälte” is active in pub­lic pro­cure­ment and con­tract law nation­wide. We will give you a first overview of your options by tele­phone, free of charge and with­out oblig­a­tion.

*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.

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