Offer exclu­sion in the event of fail­ure to declare a bind­ing peri­od exten­sion?*

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.

Award 24

*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.

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