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 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.
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.