Over­all award in com­pli­ance with pro­cure­ment law in the case of tech­ni­cal inter­de­pen­dence

On April 28, 2025, the Fed­er­al Cham­ber of Pub­lic Pro­cure­ment (VK) ruled in its deci­sion(Ref.: VK 2–27/25) that an over­all award instead of a spe­cial­ist lot award is per­mis­si­ble if there are tech­ni­cal rea­sons that make it nec­es­sary to inte­grate all ser­vice steps in one hand in order to achieve the desired lev­el of qual­i­ty. The case in ques­tion involved the award of a gen­er­al con­trac­tor con­tract for the con­struc­tion of a new bridge with a tem­po­rary bypass.

Our video dis­cussing the judg­ment:

Facts: New bridge con­struc­tion, nar­row con­struc­tion area and required opti­miza­tion

The spe­cif­ic case con­cerned an open pro­ce­dure for the replace­ment con­struc­tion of a bridge includ­ing the con­struc­tion of a tem­po­rary bypass. The con­tract­ing author­i­ty put the project out to ten­der as an over­all award to a gen­er­al con­trac­tor (GC). The ser­vices to be pro­vid­ed com­prised a large num­ber of indi­vid­ual ser­vices, includ­ing demo­li­tion and dis­man­tling work, spe­cial civ­il engi­neer­ing, earth­works and exca­va­tion work as well as the relo­ca­tion of pipelines.

The award cri­te­ria were: Price (70 %) and the design of the con­struc­tion process with pos­si­ble opti­miza­tions (30 %).

One bid­der object­ed to the lack of lot for­ma­tion, as the demo­li­tion work, spe­cial civ­il engi­neer­ing and earth­works each con­sti­tut­ed sep­a­rate spe­cial­ist lots and could be award­ed sep­a­rate­ly. After the Ag did not rem­e­dy the com­plaint, the bid­der filed an appli­ca­tion for review with the VK Bund.

The clien­t’s rea­sons for award­ing the con­tract as a whole includ­ed the close inter­link­ing of the trades, the inef­fi­cien­cy of award­ing the con­tract in lots (ref­er­ence to the con­struc­tion phase plans), the war­ran­ty issues and the pre­dict­ed exten­sion of the con­struc­tion peri­od if lots were formed. In addi­tion, coor­di­na­tion with the pro­duc­tion cycles of a neigh­bor­ing elec­tri­cal steel­works was essen­tial due to the required block­ing peri­ods and required very tight tim­ing of all con­struc­tion work.

Key point of the deci­sion: When tech­ni­cal rea­sons jus­ti­fy the over­all award

The appli­ca­tion for review was reject­ed as unfound­ed. The VK Bund con­firmed the legal­i­ty of the over­all award.

1. prin­ci­ple of lot allo­ca­tion vs. excep­tion­al case

The statu­to­ry prin­ci­ple in Sec­tion 97 (4) sen­tence 2 GWB (or Sec­tion 5 (2) no. 1 sen­tence 2 VOB/A EU) pro­vides for ser­vices to be award­ed in par­tial lots (quan­ti­ty) and spe­cial­ist lots (type or spe­cial­ist area). The Cham­ber con­firmed that there are sep­a­rate mar­kets for the ser­vices in dis­pute, such as earth­works and spe­cial­ist civ­il engi­neer­ing work as well as demo­li­tion, and that there are there­fore spe­cial­ist lots.

How­ev­er, the excep­tion of Sec­tion 97 (4) sen­tence 3 GWB (or Sec­tion 5 (2) no. 1 sen­tence 3 VOB/A EU) applies, accord­ing to which an over­all award is per­mis­si­ble if eco­nom­ic or tech­ni­cal rea­sons make this nec­es­sary.

2. weight­ing of the tech­ni­cal rea­sons

The VK Bund found that the tech­ni­cal rea­sons pre­dom­i­nat­ed in this indi­vid­ual case. Tech­ni­cal rea­sons there­fore exist if:

• They make it nec­es­sary to inte­grate all ser­vice steps under one roof in order to achieve the lev­el of qual­i­ty aimed for by the client.

• In the case of sep­a­rate ten­ders, there is a risk of receiv­ing par­tial ser­vices which, although indi­vid­u­al­ly com­pli­ant with the ten­der, do not fit togeth­er as a whole and there­fore do not meet the pro­cure­ment require­ments in the desired qual­i­ty.

3. the argu­ments for the over­all award

The VK Bund essen­tial­ly based its deci­sion on the fol­low­ing aspects, which togeth­er jus­ti­fied the excep­tion:

• Close tech­ni­cal and tem­po­ral inte­gra­tion of the trades: Due to the com­plex­i­ty of build­ing a new bridge, the con­struc­tion work could not be car­ried out suc­ces­sive­ly one after the oth­er, but had to be car­ried out in par­al­lel and recur­rent­ly in sev­er­al con­struc­tion phas­es. The trades are inter­linked (e.g. demo­li­tion only after struc­tur­al safety/concrete rein­force­ment), which requires spe­cial mea­sures from a sin­gle source.

• Coor­di­na­tion effort and time flex­i­bil­i­ty: The over­all award to a gen­er­al con­trac­tor ensures opti­mal coor­di­na­tion of the repet­i­tive trades on the spa­tial­ly lim­it­ed con­struc­tion site. If lots were award­ed, the agent would have to spec­i­fy exact exe­cu­tion dead­lines for each lot, which would have pre­vent­ed the nec­es­sary flex­i­bil­i­ty in the case of such a com­plex and dynam­ic con­struc­tion process. The esti­mat­ed exten­sion of the con­struc­tion peri­od of up to two years if lots were divid­ed up was accept­ed as a weighty argu­ment.

• Con­sid­er­a­tion of the qual­i­ty cri­te­ri­on: The award cri­te­ri­on of design­ing the con­struc­tion process with opti­miza­tion pro­pos­als only makes sense in the case of an over­all award. The required opti­miza­tion refers pre­cise­ly to the inter­ac­tion of all trades and ser­vices. The pro­cure­ment auton­o­my of the pub­lic author­i­ty to make use of the exper­tise of the spe­cial­ist com­pa­nies to opti­mize the over­all project would be cur­tailed if lots were award­ed.

• Pub­lic inter­est: The risk of col­lapse of the exist­ing bridge and the asso­ci­at­ed high pub­lic inter­est in remov­ing the source of dan­ger as quick­ly as pos­si­ble flank the tech­ni­cal rea­sons.

Tips for pub­lic clients

The deci­sion is an impor­tant con­fir­ma­tion of the pos­si­bil­i­ty of the over­all award, but sets high stan­dards for the jus­ti­fi­ca­tion.

• Doc­u­ment com­pre­hen­sive con­sid­er­a­tion: When decid­ing against award­ing a lot, you must always weigh up and doc­u­ment the con­flict­ing inter­ests com­pre­hen­sive­ly. It is not enough if the rea­sons are wor­thy of recog­ni­tion — they must pre­vail. List at least one anchor point in the award notice, which can be sup­ple­ment­ed by sub­se­quent rea­sons in the review pro­ce­dure.

• Focus on tech­ni­cal inter­link­ing: Con­cen­trate on argu­ments that demon­strate an indis­pens­able tech­ni­cal and/or tem­po­ral inter­link­ing of the trades. This is par­tic­u­lar­ly rel­e­vant for com­plex infra­struc­ture projects in which trades inter­lock or are repeat­ed sev­er­al times.

• Use qual­i­ty and opti­miza­tion: Include objec­ti­fi­able qual­i­ty lev­els and the pos­si­bil­i­ty of opti­miza­tion of the over­all project by the bid­der as an award cri­te­ri­on in the ten­der doc­u­ments. This strength­ens the argu­ment that the desired pro­cure­ment require­ments can only be met through respon­si­bil­i­ty from a sin­gle source.

Tips for bid­ders and fund­ing recip­i­ents

As a bid­der or grant recip­i­ent, you should not reject an over­all award as being con­trary to pro­cure­ment law.

• Check­ing the pro­cure­ment require­ments: Check care­ful­ly whether the qual­i­ty or opti­miza­tion required by the client can actu­al­ly only be achieved through an over­all award. The gen­er­al coor­di­na­tion effort or war­ran­ty inter­faces alone are gen­er­al­ly not suf­fi­cient jus­ti­fi­ca­tion for an over­all award.

• Con­crete lot argu­men­ta­tion: If you sub­mit a com­plaint, argue specif­i­cal­ly for the lots you are seek­ing and explain why the alleged tech­ni­cal inter­de­pen­den­cies do not pre­vent sep­a­ra­bil­i­ty.

• Use the con­cept: In the case of over­all awards with the award cri­te­ri­on “concept/construction process”, bid­ders should make max­i­mum use of their exper­tise in opti­miz­ing the con­struc­tion process in order to gain a com­pet­i­tive advan­tage.

abante Recht­san­wälte pro­vides ongo­ing sup­port to pub­lic clients and bid­ders in com­plex con­struc­tion and plan­ning pro­cure­ment law. We will be hap­py to pro­vide you with a con­crete assess­ment of the lot for­ma­tion in your project.