Menu
Before the contracting authority makes public its intention to award a contract through the procurement procedure, some preparation is required. Here are some steps. First, the contracting authority must determine its concrete needs. He must therefore determine what exactly he needs, when he needs it, for what period and with effect for whom. Once he has made these considerations, he must determine the type of service he needs (construction, service, delivery, ...).
By means of market surveys, the contracting authority gathers information on the products and methods available on the market, on potential bidders and on the usual prices. This ultimately serves as the basis for preparing the award documents and determining the correct type of award procedure. Although there is no obligation to do so, it is advisable to conduct a market survey prior to any award.
The value of the contract to be awarded is usually the decisive factor in determining whether a national or European award is to be made and which type of procurement procedure can be selected. In accordance with Section 3 (1) VgV, the contract value estimate must be based on the anticipated total value of the planned service excluding VAT; any options or contract extensions must be taken into account on a pro rata basis.
The estimate must be based on purely objective criteria. It goes without saying that the contracting authority may not deliberately estimate the value of the intended contract or "tailor" the contract in such a way that it circumvents the "strict" regulations of the EU procurement procedure.
Based on the results of the contract value estimate and the type of service determined, the award regime is then determined. Thus, for supplies and services above the EU thresholds, the VgV is generally applicable, while below the threshold - depending on the respective state law - the UVgO is applied in most cases. For construction services, on the other hand, the VOB/A applies below the EU threshold and the VOB/A EU above the EU threshold.
In order to also allow medium-sized companies to participate in the procurement procedure, the service is to be divided into partial and specialized lots. As a rule, partial lots are subdivided according to quantities or areas, while specialized lots are to be formed depending on the specialized areas.
Another important preparatory step is the selection of the type of procedure. For example, the open procedure or the public invitation to tender, the restricted procedure or the negotiated procedure are available.
This decision is decisive for the course of the tender. It is here that the course is set as to whether the invitation to tender is addressed to the de facto unlimited public or whether only a few selected companies can participate in the procedure.
The contracting authority then prepares the award documents. These are, for example, specifications, application conditions and contract documents.
Once all preparatory activities have been completed and the documents have been drawn up in full, the invitation to tender must be published so that bidders can become aware of it.
The announcement of the procurement procedure is made on specific procurement platforms, in print or online media. It must contain the essential information, in particular the contracting authority, the type and scope of the contract, the place of performance and the type of award procedure. The purpose of the notice is to enable a potential bidder to decide whether to participate in the award procedure.
The contracting authority is responsible for these initial steps. Once the notice has been published, the decision as to whether or not to participate in the award procedure rests with the bidders.
Interested companies should carefully study the documents provided and compile all the required documents, evidence, references and declarations. Before submitting a bid, for example, it should be checked again whether all the required signatures (handwritten or digital) are also available. It is important, among other things, to send the bid in the manner specified by the client. It is also advisable to make copies of all documents to be submitted.
If the bidder does not understand parts of the documents or if specifications are unclear, he has the option of addressing bidder questions to the client.
After the deadline for submission of tenders has expired, the contracting authority opens the tenders. Whereas in the past actual envelopes containing tenders still had to be opened, this step nowadays takes place almost exclusively electronically. Therefore, the opening also usually takes place digitally.
The submitted bids are checked for completeness and formal violations. If the contracting authority finds violations, it must decide whether missing documents can, may and/or must be requested or whether ambiguities can, may and/or must be clarified by inquiries. In this respect, he may have discretionary powers which he must exercise in a lawful manner. However, it may also exclude a subsequent request from the outset for all bidders or participants. There is no possibility of a subsequent demand in the case of compelling reasons for exclusion, for example, if tenders are not properly coded or signed or, in some cases, in the case of missing price information or missed deadline for submission of tenders.
The formal examination is followed by the examination of the content. This in turn is divided into several stages: Suitability check, price check and evaluation in the narrower sense.
First, the contracting authority clarifies whether the bidder meets the specified suitability criteria, i.e. whether it is capable of properly fulfilling the contract with its human and technical resources. Bidders who cannot demonstrate the required capacities and qualifications are generally excluded. In certain cases, however, the contracting authority may request missing information.
During the price check, the "adequacy of the bid" is checked in particular. If a bidder quotes a conspicuously low price, there is reason to suspect that wages below the minimum wage, unlawful working hours or inferior materials are being included. The client may then have to ensure that a bidder does not run into financial difficulties during the execution of the contract and is therefore unable to complete the contract properly or in the required quality.
Finally, the most economical bid is selected on the basis of the previously defined award criteria. This is determined by the best price-performance ratio. In addition to price or costs, qualitative, environmental or social aspects can also be taken into account to determine the most economical bid. However, as a rule, it must be made known in advance which criteria the client wishes to use.
Mixing up the individual assessment steps is not permitted. For example, the criteria used to assess the suitability of a bidder may not in principle be taken into account again for the award criteria. However, the sequence of the test steps is not always mandatory. For example, in award procedures with a competitive bidding process, the suitability test must be carried out first.
In the case of an EU-wide award procedure, the unsuccessful bidders shall be informed prior to the award of the contract. They will be informed of the intended award of the contract, the name of the selected bidder and the reasons for their exclusion or the non-inclusion of their bid. In national procurement procedures, the unsuccessful bidders also receive notification, but often not until after the contract has been awarded, unless the contracting authority decides otherwise or unless otherwise provided, e.g. in the state procurement law.
The procurement procedure is terminated by award or cancellation. Either the bid evaluation could be completed in all steps and the most economical bid could be determined. In this case, the bidder with the most economical bid is awarded the contract. Or the entire procedure is cancelled. Cancellation is possible, for example, in the event of changes in the general conditions or unsuitable bids. Even if it is effective, it need not be lawful; here, as always, it depends on the individual case.
Europe-wide expertise in public procurement law - your competent partner in all phases of the procurement process.
Alternatively, you can send us your application by mail to: abante Rechtsanwälte | Lessingstr. 2, 04109 Leipzig or send an e-mail to: personal@abante.eu
