How should the price clar­i­fi­ca­tion be car­ried out?

In pub­lic pro­cure­ment pro­ce­dures, there are many spe­cial fea­tures and chal­lenges that both con­tract­ing author­i­ties and bid­ders must take into account. A recent deci­sion by the Schleswig-Hol­stein Cham­ber of Pub­lic Pro­cure­ment dat­ed Sep­tem­ber 29, 2023 (AZ VK-SH 11/23) under­lines the impor­tance of trans­par­ent pric­ing spec­i­fi­ca­tions when award­ing school trans­port ser­vices. In this arti­cle, we sum­ma­rize the key points that are impor­tant in prac­tice.

Click here for the video of the dis­cus­sion of the deci­sion:

Back­ground to the case

In Jan­u­ary 2023, a ten­der­ing process for school trans­port ser­vices was ini­ti­at­ed. In addi­tion to the main jour­neys between school and home, spe­cial jour­neys were also put out to ten­der. The aim was to deter­mine the most eco­nom­i­cal offer based on an eval­u­a­tion price, 50% of which con­sist­ed of cal­cu­lat­ed total kilo­me­ters. This cal­cu­la­tion was based on unspec­i­fied empir­i­cal val­ues that were not dis­closed in the ten­der doc­u­ments. The remain­ing part of the eval­u­a­tion was based on the price per occu­pied kilo­me­ter.

The con­flict

The award led to dis­putes: An unsuc­cess­ful bid­der lodged a com­plaint and object­ed in par­tic­u­lar to the ade­qua­cy check in accor­dance with Sec­tion 60 VgV, which it con­sid­ered to be inad­e­quate. The pro­cure­ment cham­ber ini­tial­ly agreed and request­ed the con­tract­ing author­i­ty to car­ry out the price check. The con­tract­ing author­i­ty car­ried out the clar­i­fi­ca­tion and adhered to its orig­i­nal deci­sion. The unsuc­cess­ful bid­der chal­lenged this again.

Pro­ceed­ings before the pro­cure­ment cham­ber

The award­ing cham­ber exam­ined in detail whether the price clar­i­fi­ca­tion was car­ried out prop­er­ly. The mea­sures tak­en by the con­tract­ing author­i­ty includ­ed

• Review of vehi­cle and per­son­nel costs
• Analy­sis of cal­cu­la­tion bases, such as min­i­mum wage and oper­at­ing costs
• Mul­ti­ple queries to the bid­der to con­cretize its cal­cu­la­tion

The award­ing cham­ber assessed these steps pos­i­tive­ly and con­sid­ered the price clar­i­fi­ca­tion to be suf­fi­cient.

Assess­ment by the OLG Schleswig-Hol­stein

The High­er Region­al Court of Schleswig found that the pric­ing spec­i­fi­ca­tions were pos­si­bly non-trans­par­ent. It was par­tic­u­lar­ly crit­i­cal of the dif­fer­ence between the val­u­a­tion price and the tour price actu­al­ly invoiced. If this lack of trans­paren­cy is con­firmed, the entire pro­ce­dure could be flawed.

Access to files and pro­tec­tion of secrets

Anoth­er point of dis­pute con­cerned access to the suc­cess­ful bid­der’s files. The OLG ruled that com­pre­hen­sive dis­clo­sures were not per­mis­si­ble for rea­sons of trade secret pro­tec­tion. Instead, the Sen­ate con­duct­ed its own exam­i­na­tion.

Con­clu­sion

The deci­sion shows how sen­si­tive­ly and com­plex­ly ten­ders must be designed in order to meet both legal and eco­nom­ic require­ments. In par­tic­u­lar, the trans­paren­cy of eval­u­a­tion stan­dards is cru­cial in order to avoid dis­putes.

You can find fur­ther infor­ma­tion and analy­ses on our YouTube chan­nel abante Recht­san­wälte. Take a look and stay informed!