Lump-sum price sup­ple­men­tary offer in unit price ten­ders*

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.

What now?

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.