Plau­si­bil­i­ty of the assess­ments in the award pro­ce­dure

On June 13, 2025, our lawyer Anne Grahl dealt with the deci­sion of the Bavar­i­an Supreme Court of May 7, 2025 (Ref.: Verg 8/24) in an abante live on pub­lic pro­cure­ment law.

The Bavar­i­an Supreme Court has made an insight­ful deci­sion that focus­es on a fre­quent­ly dis­cussed top­ic in pub­lic pro­cure­ment law: the require­ments for the eval­u­a­tion of qual­i­ta­tive award cri­te­ria. The deci­sion makes it clear that eval­u­a­tion deci­sions in the award pro­ce­dure may not be made at will, but are sub­ject to con­sti­tu­tion­al require­ments — in par­tic­u­lar the require­ment of trans­paren­cy, equal treat­ment of bid­ders and the require­ment of com­pre­hen­si­bil­i­ty. This also applies in areas where func­tion­al ten­ders require cre­ative solu­tions and the con­tract­ing author­i­ty has a mar­gin of dis­cre­tion. The oblig­a­tion to pro­vide com­pre­hen­si­ble doc­u­men­ta­tion of the eval­u­a­tion is par­tic­u­lar­ly empha­sized. If this is miss­ing, the award pro­ce­dure may be open to chal­lenge.

Click here for the video of the dis­cus­sion of this deci­sion:

Ini­tial sit­u­a­tion

The rul­ing of the Bavar­i­an Supreme Court (Bay­ObLG) of June 13, 2025 con­cerns a Europe-wide pro­cure­ment pro­ce­dure of a pub­licly fund­ed hos­pi­tal. The sub­ject mat­ter was the award of a con­tract for the pro­vi­sion of cen­tral pro­cure­ment ser­vices by a pur­chas­ing group, which was to con­clude frame­work agree­ments, select prod­ucts, iden­ti­fy poten­tial sav­ings and sup­port strate­gic sup­ply struc­tures, among oth­er things.

The ten­der was car­ried out in an open pro­ce­dure. The award cri­te­ria were divid­ed into a price com­po­nent (30%) and the eval­u­a­tion of sev­er­al qual­i­ta­tive con­cepts (70%). Among oth­er things, reim­burse­ment mod­els, dig­i­tal­iza­tion, inno­v­a­tive capac­i­ty, net­work­ing, train­ing con­cepts and mea­sures to ensure secu­ri­ty of sup­ply were eval­u­at­ed.

Two pur­chas­ing groups sub­mit­ted com­plete bids with­in the bid dead­line. While the appli­cant scored par­tic­u­lar­ly well in the price cri­te­ri­on, the respon­dent achieved the high­er over­all score due to the con­cep­tu­al eval­u­a­tion. The appli­cant object­ed to this deci­sion with ref­er­ence to seri­ous irreg­u­lar­i­ties in the eval­u­a­tion of its con­cepts. In par­tic­u­lar, it object­ed to a lack of com­pre­hen­si­bil­i­ty, improp­er con­sid­er­a­tions and a breach of the prin­ci­ple of equal treat­ment. The appli­ca­tion for review led to the par­tial annul­ment of the award deci­sion by the Ans­bach pro­cure­ment cham­ber (ref. RMF-SG21-3194–9‑32). The hos­pi­tal filed an appeal against the deci­sion of the award­ing cham­ber, the appli­cant also filed a cross-appeal, as the award­ing cham­ber had not made a deci­sion on two fur­ther con­cept eval­u­a­tions, where­upon the Bay­ObLG (Az. Verg 8/24 e) was seized with the case.

Deci­sion of the court

The deci­sion of the Bay­ObLG clar­i­fies that qual­i­ta­tive award cri­te­ria do not open up a legal vac­u­um. Even where cre­ative, con­cep­tu­al or strate­gic con­tri­bu­tions are required, eval­u­a­tions must be trans­par­ent, con­sis­tent and based on objec­tive­ly viable con­sid­er­a­tions. A broad scope for assess­ment does not release the award­ing author­i­ty from its duty to com­ply with the basic prin­ci­ples of pub­lic pro­cure­ment law.

This became par­tic­u­lar­ly clear in the eval­u­a­tion cri­te­ri­on “reim­burse­ment”: The award­ing author­i­ty had defined in the eval­u­a­tion matrix that prompt reim­burse­ment was to be eval­u­at­ed pos­i­tive­ly — an aspect that was ful­ly met by the appli­can­t’s bid. Nev­er­the­less, the appli­cant received a low­er rat­ing on this point with­out this being clear­ly doc­u­ment­ed. The court judged this to be a clear breach of the self-imposed eval­u­a­tion require­ments.

The deci­sion also crit­i­cized the fact that some of the aspects includ­ed in the eval­u­a­tion had not been dis­closed as require­ments in the ten­der doc­u­ments. In oth­er cas­es, the appli­can­t’s cor­rect infor­ma­tion was deval­ued even though it objec­tive­ly ful­filled the required con­tent — for exam­ple in the areas of dig­i­tal­iza­tion, train­ing and plan­ning to safe­guard sup­ply chains in cri­sis sit­u­a­tions.

The Bay­ObLG empha­sized that a com­par­a­tive assess­ment may not lead to dif­fer­ent points being award­ed if the sub­stan­tive per­for­mance is equiv­a­lent. A devi­a­tion that is not objec­tive­ly jus­ti­fied vio­lates the prin­ci­ples of trans­paren­cy and equal treat­ment. The award­ing author­i­ty was there­fore oblig­ed to reset the award pro­ce­dure to the sta­tus pri­or to the eval­u­a­tion of the ten­ders and to com­plete­ly re-eval­u­ate con­cepts no. 1, 2.6, 2.7, 2.8, 2.9, 3.7, 3.8, 4, 5 as well as 6.1 and 6.2. The pro­ceed­ings were then to be con­tin­ued in accor­dance with the court’s legal opin­ion.

Legal­i­ty of the val­u­a­tion

The Bay­ObLG found that the ten­der eval­u­a­tion was in breach of pub­lic pro­cure­ment law in sev­er­al key points. In par­tic­u­lar, the devi­a­tion from the com­pa­ny’s own eval­u­a­tion spec­i­fi­ca­tions and the inad­e­quate doc­u­men­ta­tion led to the objec­tion. The Sen­ate empha­sized that a con­sis­tent and com­pre­hen­si­ble eval­u­a­tion is not a mere for­mal­i­ty, but a legal­ly required pre­req­ui­site for a prop­er award pro­ce­dure — espe­cial­ly when eval­u­at­ing qual­i­ta­tive award cri­te­ria.

Con­clu­sion

The Bay­ObLG’s deci­sion illus­trates the great impor­tance of a struc­tured and legal­ly com­pli­ant eval­u­a­tion method­ol­o­gy — espe­cial­ly for ten­ders in which qual­i­ta­tive con­cepts are deci­sive. Pub­lic con­tract­ing author­i­ties must adhere to the eval­u­a­tion stan­dards they have set them­selves and apply them con­sis­tent­ly. A devi­at­ing eval­u­a­tion of equiv­a­lent con­tent with­out objec­tive jus­ti­fi­ca­tion is inad­mis­si­ble.

In addi­tion, every val­u­a­tion must be ade­quate­ly doc­u­ment­ed. Doc­u­men­ta­tion is not only impor­tant inter­nal­ly, but also forms the cen­tral basis for court-proof trace­abil­i­ty in the event of a dis­pute. Where the qual­i­ta­tive com­po­nent is high, the risk of sub­jec­tive mis­judge­ments increas­es — mak­ing struc­tured process­es and, if nec­es­sary, exter­nal sup­port for qual­i­ty assur­ance all the more impor­tant.

Infor­ma­tion for con­tract­ing author­i­ties

The deci­sion clar­i­fies the legal require­ments for the design and imple­men­ta­tion of eval­u­a­tion pro­ce­dures in the con­text of func­tion­al ten­ders:

Bind­ing nature of the eval­u­a­tion stan­dards

In the con­text of func­tion­al ten­ders, the eval­u­a­tion stan­dards set by the award­ing author­i­ty itself — for exam­ple in an eval­u­a­tion matrix — are bind­ing. If these stan­dards are sub­se­quent­ly rel­a­tivized or replaced by cri­te­ria that have not been com­mu­ni­cat­ed, this vio­lates the prin­ci­ples of trans­paren­cy and equal treat­ment. The award­ing author­i­ty is bound by its own spec­i­fi­ca­tions and may not change them arbi­trar­i­ly.

Need for con­sis­ten­cy in the assess­ment

Com­pa­ra­ble ser­vices must also be treat­ed com­pa­ra­bly in the eval­u­a­tion process. If eval­u­a­tions dif­fer from one anoth­er, even though the ten­ders do not dif­fer in terms of the rel­e­vant char­ac­ter­is­tics, this must be doc­u­ment­ed in a tech­ni­cal­ly sound and com­pre­hen­si­ble man­ner. A con­sis­tent eval­u­a­tion prac­tice pro­tects against arbi­trari­ness and ensures equal treat­ment of all bid­ders.

Doc­u­men­ta­tion as a legal oblig­a­tion

Doc­u­ment­ing the eval­u­a­tion process is not a vol­un­tary mea­sure, but a manda­to­ry legal require­ment — espe­cial­ly when eval­u­at­ing qual­i­ta­tive cri­te­ria. As such eval­u­a­tions are often case-spe­cif­ic and dis­cre­tionary, the basis of the eval­u­a­tion and the award­ing of points must be doc­u­ment­ed in a detailed and com­pre­hen­si­ble man­ner. This also results from Sec­tion 8 VgV, which requires com­pre­hen­sive doc­u­men­ta­tion.

Ensure trace­abil­i­ty for third par­ties

The com­pre­hen­si­bil­i­ty of the eval­u­a­tion is not only impor­tant for unsuc­cess­ful bid­ders, but also for the bod­ies involved in review­ing the award pro­ce­dure in a pos­si­ble review pro­ce­dure. Gen­er­al state­ments or for­mu­la­ic jus­ti­fi­ca­tions are not suf­fi­cient. Rather, con­crete and trans­par­ent expla­na­tions of the basis for the deci­sion are required.

Strength­en­ing inter­nal qual­i­ty assur­ance

For ten­ders in which qual­i­ta­tive cri­te­ria play a cen­tral role, the award­ing author­i­ty should crit­i­cal­ly scru­ti­nize its inter­nal eval­u­a­tion process­es. Struc­tured qual­i­ty assur­ance can help to avoid eval­u­a­tion errors. If nec­es­sary, exter­nal sup­port can also be use­ful in order to increase the objec­tiv­i­ty and reli­a­bil­i­ty of the eval­u­a­tions.

Notes for bid­ders

The deci­sion also con­tains valu­able infor­ma­tion for bid­ders and fund­ing recip­i­ents on strate­gic posi­tion­ing in the award pro­ce­dure:

Ear­ly com­plaint to secure rights

Bid­ders should care­ful­ly check whether a com­plaint is nec­es­sary at the first signs of dis­crep­an­cies in the pre­lim­i­nary infor­ma­tion. Even if con­crete eval­u­a­tion errors are often not yet rec­og­niz­able at this point, it may be suf­fi­cient to point out an insuf­fi­cient or unclear jus­ti­fi­ca­tion. The pre­req­ui­site is that the com­plaint must indi­cate the rec­og­niz­able con­tent of the objec­tion. An ear­ly, fac­tu­al­ly sub­stan­ti­at­ed com­plaint can be deci­sive in gain­ing access to the review pro­ce­dure at a lat­er stage — how­ev­er, wild or blan­ket com­plaints should be avoid­ed.

Tar­get­ed use of file access

The deci­sion clar­i­fies that infor­ma­tion that only becomes known dur­ing the inspec­tion of files may be sub­se­quent­ly intro­duced into a review pro­ce­dure. This allows bid­ders to base their objec­tions on a well-found­ed basis and tar­get fur­ther action — with­out the risk of preclu­sion, pro­vid­ed that the orig­i­nal objec­tion accu­rate­ly reflects the infor­ma­tion sit­u­a­tion.

Con­cept pre­sen­ta­tion with pre­ci­sion

The deci­sion does not explic­it­ly com­ment on the form of the con­cept pre­sen­ta­tion. Nev­er­the­less, the pro­ce­dure shows that a clear and struc­tured elab­o­ra­tion can be help­ful, espe­cial­ly in func­tion­al ten­ders with scope for eval­u­a­tion — both for the com­pre­hen­si­bil­i­ty of the eval­u­a­tion and for its legal com­pre­hen­si­bil­i­ty in the review pro­ce­dure.

Demand equal treat­ment

If con­tent of com­pa­ra­ble val­ue has been rat­ed dif­fer­ent­ly, it is advis­able to ques­tion this crit­i­cal­ly. The stan­dards of equal treat­ment also apply to qual­i­ta­tive assess­ments. A dif­fer­en­ti­at­ed assess­ment may not be accept­ed with­out a con­clu­sive and doc­u­ment­ed jus­ti­fi­ca­tion.