Every contractor is familiar with the situation: The contracting authority invites tenders for a unit price contract The bidder makes every effort and prices item after item. On the submission date, the bidder is in first place, having offered the lowest price. But: There are one or two side offers of unknown content. A few days or weeks later, the surprise comes: one of the secondary offers is a so-called lump-sum secondary offer. This offer is supposedly cheaper than the offer of the bidder who has entered unit price after unit price. In a confidential discussion, the specialist engineer or project planner now reveals that he is quite inclined to award the contract to the “cheaper” bidder — lump sum price or not.
What to do?
The bidder may initially accept this decision. He may even be happy about it. However, he can also defend himself against it. Here are a few — non-exhaustive — arguments and considerations that speak for and against the comparability of the lump-sum price supplementary offer with the unit price offer — which is mandatory under procurement law:
- Discounts under a condition are inadmissible.
- The unit price contract as a type is a minimum requirement.
- Speculative nature of the secondary offer.
- Merely commercial side offer, which does not deviate from the office draft, especially in technical terms.
The best arguments — see the selection above — are of no use if they are not presented to the right people at the right time with the necessary authority. Please feel free to contact us for this.
*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.