No addi­tion­al request for eval­u­a­tion-rel­e­vant doc­u­ments!

On June 25, 2025, the Fed­er­al Pub­lic Pro­cure­ment Cham­ber (VK Bund) ruled in its deci­sion (Ref.: VK 1 — 36/25) that the addi­tion­al request for eval­u­a­tion-rel­e­vant doc­u­ments in the award pro­ce­dure is inad­mis­si­ble and leads to the manda­to­ry exclu­sion of the ten­der.

Our video dis­cussing the judg­ment

Facts of the case

In the under­ly­ing pro­ce­dure, the con­tract­ing author­i­ty invit­ed ten­ders for sophis­ti­cat­ed ser­vices in the field of sam­ple logis­tics and par­tic­i­pant recruit­ment. The scope of ser­vices includ­ed the recruit­ment of par­tic­i­pants via reg­is­tra­tion offices in at least 100 munic­i­pal­i­ties, sev­er­al con­tact points, inter­views, mea­sure­ments as well as sam­pling and sam­ple logis­tics includ­ing pre-analy­sis in mobile lab­o­ra­to­ries. As the price was spec­i­fied as a fixed price, the com­pe­ti­tion was based exclu­sive­ly on qual­i­ta­tive award cri­te­ria. A cen­tral cri­te­ri­on — the third award cri­te­ri­on, weight­ed with 15% and a max­i­mum of 5 points — was the expe­ri­ence of the nom­i­nat­ed key per­son­nel based on the num­ber of projects already car­ried out with at least 500 par­tic­i­pants. The eval­u­a­tion was based on a quo­ta for­mu­la: The bid with the high­est num­ber of rel­e­vant projects was award­ed 5 points, the oth­ers were put in pro­por­tion.

Although the lat­er appli­cant named per­son­nel, it failed to specif­i­cal­ly assign the required project expe­ri­ence to them in the offer. In addi­tion, one of the projects named was in the future and there­fore did not demon­strate any exist­ing expe­ri­ence. Fol­low­ing a request for clar­i­fi­ca­tion, the bid­der attempt­ed to fill these gaps by sub­se­quent­ly refer­ring to a sub­con­trac­tor. As this con­sti­tut­ed an inad­mis­si­ble change to the orig­i­nal bid con­tent, the bid remained incom­plete.

Key point of the deci­sion

The deci­sion deals with sev­er­al key aspects. First, the VK Bund found that the appli­ca­tion for review was already par­tial­ly inad­mis­si­ble: Inso­far as the appli­cant attacked the third eval­u­a­tion cri­te­ri­on as such, it was pre­clud­ed pur­suant to Sec­tion 160 (3) sen­tence 1 no. 3 GWB, as the alleged breach of pro­cure­ment law was already appar­ent from the ten­der doc­u­ments and was not object­ed to by the expiry of the ten­der dead­line. On the mer­its, the VK Bund found that the appli­can­t’s bid had to be exclud­ed because dec­la­ra­tions rel­e­vant to the eval­u­a­tion of the third award cri­te­ri­on were miss­ing. Pur­suant to Sec­tion 56 (3) sen­tence 1 VgV, sub­se­quent requests for doc­u­ments are exclud­ed if they are per­for­mance-relat­ed doc­u­ments that direct­ly influ­ence the eval­u­a­tion of the ten­der. As the required project descrip­tions of the key per­sons were direct­ly includ­ed in the qual­i­ta­tive point eval­u­a­tion, they could no longer be com­plet­ed after the ten­der dead­line had expired. The con­tract­ing author­i­ty has no dis­cre­tion in such a case; the exclu­sion of an incom­plete ten­der is manda­to­ry in accor­dance with Sec­tion 57 (1) No. 2 VgV.

Fur­ther­more, the cham­ber empha­sized that a sub­se­quent change to the dis­tri­b­u­tion of ser­vices — for exam­ple, stat­ing that a sub­con­trac­tor should now be respon­si­ble for addi­tion­al work pack­ages after all — con­sti­tutes an inad­mis­si­ble change to the ten­der. A bid­der is bound by the con­tent of its orig­i­nal bid; in this respect, the con­tract­ing author­i­ty has a mar­gin of dis­cre­tion in the design of award cri­te­ria, which was not exceed­ed here. In addi­tion, the VK Bund con­firmed the admis­si­bil­i­ty of award cri­te­ria that are based on the expe­ri­ence of the spe­cif­ic per­son­nel deployed. Con­trary to the appli­can­t’s view, such cri­te­ria are not to be regard­ed as com­pa­ny-relat­ed suit­abil­i­ty cri­te­ria, but as per­son-relat­ed qual­i­ty char­ac­ter­is­tics with­in the mean­ing of Sec­tion 58 (2) sen­tence 2 no. 2 VgV. With regard to the defen­dan­t’s bid, the cham­ber found that ini­tial doc­u­men­ta­tion deficits could be reme­died by means of per­mis­si­ble clar­i­fi­ca­tion — with­out the need to sub­mit new projects. The inter­pre­ta­tion of the ten­der doc­u­ments depends on the objec­tive under­stand­ing of a com­pe­tent bid­der, where­by the uni­form under­stand­ing of all bid­ders can be seen as an impor­tant indi­ca­tion of the clar­i­ty of the spec­i­fi­ca­tions.

Tips for pub­lic clients

• Secure key per­sons in the con­tract award: The assess­ment of the expe­ri­ence of key per­son­nel is per­mis­si­ble as an award cri­te­ri­on, pro­vid­ed that the qual­i­ty ref­er­ence to the object of per­for­mance is clear­ly jus­ti­fied and oper­a­tional­ized.
• Clear­ly posi­tion sub­mis­sion require­ments: Every­thing that is rel­e­vant for award­ing points must be clear­ly stat­ed as a sub­mis­sion require­ment in the right place in the ten­der doc­u­ments — not just in a gen­er­al expla­na­tion.
• Doc­u­ment the clar­i­fi­ca­tion prop­er­ly: The clar­i­fi­ca­tion must not lead to the rec­ti­fi­ca­tion of a faulty ten­der. It must be clear­ly doc­u­ment­ed in the award file that no unau­tho­rized rec­ti­fi­ca­tion was per­mit­ted.

Tips for bid­ders and fund­ing recip­i­ents

• Check com­plete­ness before send­ing:. Use the ser­vice descrip­tion and the eval­u­a­tion matrix to check on your own respon­si­bil­i­ty which evi­dence must be sub­mit­ted with the ten­der and to what extent, and whether the evi­dence is per­son­al.
• No sub­se­quent changes to con­tent: Clar­i­fi­ca­tion only serves the pur­pose of expla­na­tion; attempts to rem­e­dy a lack of expe­ri­ence through new sub­con­trac­tor struc­tures are inad­mis­si­ble.
• Ear­ly noti­fi­ca­tion of ambi­gu­i­ties: Rec­og­niz­able defi­cien­cies in the ten­der doc­u­ments must be report­ed before the dead­line for sub­mis­sion of ten­ders in order to main­tain the right to sub­mit a bid.