Working for you throughout Germany
Working for you throughout Germany
Public procurement law recognizes a large number of rights that protect bidders. Their scope is the subject of constant dispute. At the same time, they are decisive. Only if a right protecting bidders has been violated can the bidder demand a repetition of a stage of the award procedure. Only then does he have a second chance. This is also important for contracting authorities. This is because they only have to fear an unfavorable decision by the review bodies if bidder-protecting rights have been violated.
The following overview is not exhaustive. It only provides an initial insight into some of the rights protecting bidders that are often negotiated before the review bodies. Please contact us if you are not sure whether bidder-protecting rights have been violated in your specific case and what the consequences are.
The contracting authority may only examine or evaluate the tender on the basis of published suitability and award criteria.
The contracting authority must continuously document all significant decisions relating to the award, cf. section 8 (1) VgV, section 8 (1) SektVO, section 6 (1) KonzVgV, section 20 (1) sentence 1 VOB/A, section 20 EU VOB/A in conjunction with section 8 VgV. § Section 8 VgV, Section 6 (1) UVgO. The obligation to document follows from the requirement of transparency of the award procedure, Section 97 Para. 1 GWB, and is intended to prevent manipulation. The aim is to make the decisions of the awarding authority transparent and verifiable for both the review bodies and the bidders. The information contained in the award notice must be so detailed that it is comprehensible to a reader familiar with the facts of the respective award procedure, see OLG Düsseldorf, decision of November 28, 2018 - Verg 35 / 18; OLG Celle, decision of May 12, 2016 - 13 Verg 10/15; OLG Karlsruhe, decision of January 31, 2014 - 15 Verg 10/13).
According to Section 134 (1) GWB, contracting authorities must immediately inform bidders whose bids are not to be considered of the name of the company whose bid is to be accepted, the reasons why their bid is not to be considered and the earliest date on which the contract can be concluded in text form. This includes the complete and, from the point of view of the contracting authority, correct reasons for the intended non-consideration of a tender (see VK Südbayern, decision of 31.01.2020, Z 3 - 3 - 3194 - 1 - 51 - 11 / 19; Dreher/Hoffmann, in: Burgi/Dreher, Beck'scher Vergaberechtskommentar, § 135 GWB Rn. 22 f.).
The client must disclose facts relevant to the calculation insofar as they are available or accessible to it (see VK Bund, decision of 06.11.2023, VK 1 - 77 / 23).
The contracting authority must treat and evaluate all tenders according to the same standards (VK Bund, decision of 13.02.2023, VK 2 - 114 / 22; VK Bund, decision of 07.12.2022, VK 2 - 96 / 22; VK Lüneburg, decision of 26.03.2014, VgK - 06 / 2014).
The contracting authority must exclude formally unsatisfactory tenders from the award procedure.
The contracting authority must make all award and contract documents available electronically free of charge and directly, cf. section 41 VgV.
The contracting authority may not assess any additional suitability at the award level.
The client must inform all bidders in good time of the framework conditions for sampling, presentations and test positions.
The client must observe the minimum deadlines specified in the procedural regulations, unless there is a reason for shortening the deadline that is recognized in these procedural regulations.
The contracting authority may only specify award criteria that are related to the subject matter of the contract, see Section 127 (3) GWB. The bidder is entitled to this (see BayObLG, decision of 11.12.2024, Verg 7 / 24 e).
The bidder can claim that the contracting authority refrains from imposing requirements that make a commercially reasonable calculation of the bid unreasonable and thereby impair the bidder's prospects of its bid being considered for the award of the contract (see BayObLG, decision of December 6, 2023, Verg 7/23e).
The bidder's own rights are violated if the bid of the supposed best bidder is unusually low and yet no information was provided. The bidder is entitled to have the competing bid examined in terms of price (VK Sachsen, decision of May 26, 2015 - 1/SVK/015-15; VK Südbayern, decision of January 31, 2020 - Z3-3-3194-1-51-11/19).
The bidder is entitled to not have formally unsatisfactory bids excluded if this is mandatory in accordance with the requirements of public procurement law (see VK Südbayern, decision of May 2, 2016 - Z3-3-3194-1-10-03/16).
According to Section 41 VgV, award and contract documents must be made available electronically free of charge and directly. The bidder has a right to this (see VK Nordbayern, decision of 16.04.2018 - RMF-SG 21-18; VK Bund, decision of 27.09.2017 - VK 2-60/17.
The mixing of suitability and award criteria violates Section 127 (3) GWB, according to which suitability criteria may not be taken into account in the award decision (see BayObLG, decision of 11.12.2024 - Verg 7/24 e).
The conditions for presentations and test positions were not communicated to all bidders in a timely and uniform manner, which constitutes a violation of the principle of transparency.
Legal basis: VK Sachsen, decision of 24.04.2008 - 1-SVK/15/08; OLG Naumburg, decision of 23.07.2001 - 1 Verg 2/01.
The statutory minimum deadlines were disregarded without there being a recognized reason for shortening them in accordance with the procedural regulations.
Legal basis: ECJ, judgment of 28.02.2018 - Case C-64/17; VK Westfalen, decision of 01.02.2018 - VK 1-39/17.
The requirements make it unreasonably difficult to calculate bids in a commercially reasonable manner and therefore disadvantage bidders who wish to implement these requirements properly.
Legal basis: BayObLG, decision of 06.12.2023 - Verg 7/23e; OLG Munich, decision of 09.05.2018 - Verg 13/18.
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