No arti­fi­cial split­ting of a uni­form pro­cure­ment require­ment!

On April 24, 2025, the Thuringia Pub­lic Pro­cure­ment Cham­ber ruled in its deci­sion (Ref.: 5090–250-4003–500) that the arti­fi­cial split­ting of a uni­form pro­cure­ment require­ment, even in the case of inter­im con­tracts, vio­lates the pro­hi­bi­tion of cir­cum­ven­tion under pub­lic pro­cure­ment law and that the con­tract val­ues must be added togeth­er. This can lead to the appli­ca­tion of EU pub­lic pro­cure­ment law, even if the indi­vid­ual con­tracts are below the thresh­old val­ue.

Our video dis­cussing the judg­ment:

Facts: Inter­im win­ter ser­vice con­tracts put to the test

The deci­sion sheds light on a com­mon chal­lenge: how to deal with an acute pro­cure­ment need when the orig­i­nal award pro­ce­dure is blocked. A dis­trict invit­ed ten­ders for win­ter ser­vices for the 2024/2025 sea­son in an EU-wide open pro­ce­dure. Due to a review pro­ce­dure in the main con­tract, there was a delay, which is why the con­tract­ing author­i­ty (CA) was forced to award three suc­ces­sive inter­im con­tracts to ensure the pro­vi­sion of ser­vices.

The prob­lem arose from the choice of pro­ce­dure for the last inter­im con­tract. This was car­ried out as a nation­al, restrict­ed invi­ta­tion to ten­der with­out a call for com­pe­ti­tion.

The unsuc­cess­ful bid­der crit­i­cized the choice of the nation­al pro­ce­dure. It argued that the con­tract val­ues of the entire per­for­mance peri­od — i.e. all three inter­im awards — should be added togeth­er. If the client had done this, the rel­e­vant EU thresh­old val­ue of EUR 221,000 net would have been exceed­ed, which would have meant that an EU-wide award pro­ce­dure would have had to be cho­sen. The AG, how­ev­er, reject­ed the com­plaint with ref­er­ence to the iso­lat­ed con­sid­er­a­tion of the indi­vid­ual con­tracts and the pre­vail­ing urgency.

Key point of the deci­sion: Incor­rect esti­ma­tion of order val­ue due to arti­fi­cial split­ting

The Thuringia Pub­lic Pro­cure­ment Cham­ber found that the con­tract­ing author­i­ty’s argu­men­ta­tion was unsus­tain­able and that the bid­der was essen­tial­ly cor­rect in its com­plaint. There was a dou­ble vio­la­tion.

1. breach of the con­tract val­ue esti­ma­tion method

The esti­mate of the con­tract val­ue must be a seri­ous, real­is­tic, com­plete and objec­tive fore­cast based on cur­rent mar­ket con­di­tions. The client had not com­plied with the method­olog­i­cal stan­dards here, among oth­er things because the esti­mate was insuf­fi­cient­ly doc­u­ment­ed and was only made on the basis of a bid­der’s old con­tracts. Old con­tracts alone should not be the only point of ref­er­ence.

2. vio­la­tion of the pro­hi­bi­tion of cir­cum­ven­tion (Sec­tion 3 (2) sen­tence 1 VgV)

The Cham­ber con­sid­ered the iso­lat­ed award of the inter­im con­tracts to be an inad­mis­si­ble arti­fi­cial divi­sion of the pro­cure­ment require­ments in order to cir­cum­vent the appli­ca­tion of antitrust pro­cure­ment law.

• Rel­e­vance of the func­tion­al approach: A func­tion­al approach is deci­sive in deter­min­ing whether orders belong togeth­er. This takes into account orga­ni­za­tion­al, con­tent-relat­ed, eco­nom­ic and tem­po­ral rela­tion­ships.

• Uni­form require­ments: The three inter­im con­tracts relat­ed to the same sub­ject mat­ter — win­ter ser­vices dur­ing the ongo­ing review pro­ce­dure — and served to ensure the seam­less pro­vi­sion of ser­vices. There was there­fore a clear func­tion­al and eco­nom­ic uni­ty.

• Urgency as an insuf­fi­cient rea­son: The urgency cit­ed by the client was not suf­fi­cient to jus­ti­fy the allo­ca­tion. Instead, the client should have cho­sen an EU-wide pro­cure­ment pro­ce­dure — e.g. a nego­ti­at­ed pro­ce­dure with­out a call for com­pe­ti­tion in the event of par­tic­u­lar urgency (Sec­tion 14 (4) No. 3 VgV).

The arti­fi­cial split­ting of the over­all con­tract into sev­er­al indi­vid­ual nation­al awards was qual­i­fied as an inad­mis­si­ble cir­cum­ven­tion of pub­lic pro­cure­ment reg­u­la­tions.

Tips for pub­lic clients: clar­i­ty and exper­tise in plan­ning

The rul­ing under­lines that a prag­mat­ic, solu­tion-ori­ent­ed approach to pub­lic pro­cure­ment law must always go hand in hand with pro­fes­sion­al excel­lence and trans­paren­cy.

• Inter­im award = addi­tion require­ment: If inter­im con­tracts are close­ly relat­ed to a main con­tract in terms of func­tion, con­tent or time, or if they cov­er the same require­ments, the con­tract val­ues must be added togeth­er to deter­mine the cor­rect thresh­old val­ue.

• Method­ol­o­gy of the esti­mate: Avoid rely­ing sole­ly on old con­tracts when esti­mat­ing the con­tract val­ue. The fore­cast must be objec­tive and take into account all sig­nif­i­cant cost fac­tors and mar­ket con­di­tions.

• Check urgency: Urgency is not a free pass for choos­ing a sub-thresh­old pro­ce­dure. Even if there is time pres­sure, the client must check whether an EU pro­ce­dure with reduced dead­lines is pos­si­ble in order to avoid cir­cum­ven­tion.

• Com­plete doc­u­men­ta­tion: Doc­u­men­ta­tion is key to legal cer­tain­ty. The rea­sons for choos­ing the type of pro­ce­dure, the con­tract val­ue esti­mate and every deci­sion must be set out in detail and in a com­pre­hen­si­ble man­ner.

Tips for bid­ders and appli­cants: Pro­tect your rights to fair com­pe­ti­tion

As a bid­der, you are enti­tled to com­pli­ance with the pro­vi­sions of the award pro­ce­dure. This deci­sion pro­vides impor­tant argu­ments for enforc­ing your rights.

• Crit­i­cal­ly scru­ti­nize con­tract val­ues: In the case of nation­al ten­ders, check whether the addi­tion of sim­i­lar, tem­po­ral­ly relat­ed con­tracts (includ­ing inter­im awards) results in the EU thresh­old being exceed­ed. If arti­fi­cial split­ting is sus­pect­ed, a rep­ri­mand is required.

• Demand trans­paren­cy and doc­u­men­ta­tion: Demand com­plete and com­pre­hen­si­ble doc­u­men­ta­tion of the con­tract val­ue esti­mate from the client. If this is miss­ing, this con­sti­tutes a breach of the trans­paren­cy require­ment.

• Exam­ine below-cost offers: In the facts of the case, the cham­ber also crit­i­cized defi­cien­cies in the clien­t’s price review in the case of an unusu­al­ly low bid price. Make sure that the client has care­ful­ly and com­pre­hen­si­bly checked the ade­qua­cy of a com­pet­ing offer.

• Ensure legal pro­tec­tion: Effec­tive legal pro­tec­tion before the Pub­lic Pro­cure­ment Tri­bunals and High­er Region­al Courts applies to the upper thresh­old range and is avail­able in the event of cir­cum­ven­tion.