A person who does not agree to an extension of the binding period suggested by the client does not thereby declare that he is not (any longer) interested in the order.
An exclusion of the offer based on this lacks a legal basis.
What happened?
The invitation to tender was for the supply of materials and logistics for broadband expansion. The binding deadline for bids was July 30, 2019. The respondent requested an extension of the binding deadline until September 22, 2019. The applicant did not declare an extension of the binding deadline. The Respondent excluded the Respondent’s bid, citing the failure to send confirmation of the extension of the binding period. The applicant’s complaint was not upheld. The request for review was rejected by the Procurement Chamber with reference to Section 57 (1) No. 2 VgV. The bid of the applicant had lapsed in accordance with §§ 146, 148 BGB without the extension of the binding period. The immediate appeal is directed against this.
The decision
The appeal was successful. The exclusion of the bid was unlawful for lack of a legal basis. The expiry of a bid under civil law does not mean that the bid is also invalid under procurement law. It may even be necessary to consider the applicant’s bid for budgetary reasons.
The VK wrongly based the exclusion on Section 57 (1) No. 2 VgV. According to this standard, which does not grant the respondent any discretion, bids are to be excluded which do not contain the required documents or the documents which were permissibly subsequently requested pursuant to Section 56 VgV. Declarations on the extension of the binding period do not constitute documents pursuant to Section 57 (1), Section 48 (1) VgV.
The term “documents” is limited to company-related or performance-related documents. An extension of the retention period cannot be assigned to either of the two groups. The exclusion criteria cannot be applied by analogy. These are conclusive and may not be interpreted in a broader way.
An award decision made by the respondent after the expiration of the binding period shall constitute a new offer which, if appropriately worded, may be accepted on the terms of the original offer.
Practical tip
In a construction contract procurement case, the decision would hardly be worth mentioning. The VOB/A explicitly regulates the case of a late bid; exclusion if the bidder simply does not extend the commitment is usually out of the question. The situation is different in VgV cases. Here, there is by no means such a clear distinction between contract and procurement law considerations. However, bidders should not blindly rely on this case law. In particular, they must carefully check the award documents to see whether they provide for the exclusion of time-limited bids.
Before declaring an extension of the binding period, it must always be checked how “great” the interest in an award is (still), in particular whether the bidder would also submit a bid at the current time under unchanged conditions. By submitting the extension of the binding time limit, the bidder is bound to its bid until the expiry of the time limit. In addition, caution: A change to the new binding period specified by the contracting authority — regardless of whether it is shortened or extended — can lead to the exclusion of the bid as a change to the award documents.
*This legal tip is not a substitute for legal advice in individual cases. By its very nature, it is incomplete, nor is it specific to your case, and it also represents a snapshot in time, as legal principles and case law change over time. It cannot and does not cover all conceivable constellations, serves entertainment 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.