Pre­ci­sion before blan­ket crit­i­cism: High demands on price clar­i­fi­ca­tion

On Decem­ber 16, 2025, the Bran­den­burg High­er Region­al Court ruled (case ref­er­ence: 19 Verg 1/25) that the exclu­sion of a bid­der due to an alleged­ly unrea­son­ably low offer price is unlaw­ful if the price clar­i­fi­ca­tion request is not suf­fi­cient­ly clear­ly for­mu­lat­ed. The deci­sion focused on the ques­tion of what require­ments pub­lic con­tract­ing author­i­ties must place on a law­ful price clar­i­fi­ca­tion and how far the bid­ders’ clar­i­fi­ca­tion oblig­a­tions extend.

Our video dis­cussing the judg­ment:

Facts of the case

The sub­ject of the pro­ce­dure was a Europe-wide invi­ta­tion to ten­der for scaf­fold­ing work as part of the con­struc­tion of a new “ener­gy work­shop”. The client esti­mat­ed the con­tract val­ue at around 157,000 euros. In fact, how­ev­er, all of the bids received were sig­nif­i­cant­ly low­er than this esti­mate.

The appli­cant, a scaf­fold­ing com­pa­ny, sub­mit­ted the most favor­able offer in terms of price at around EUR 50,000 (gross). Due to the con­sid­er­able dif­fer­ence between the con­tract val­ue esti­mate and the oth­er bids, the con­tract­ing author­i­ty ini­ti­at­ed a price clar­i­fi­ca­tion in accor­dance with Sec­tion 16d EU VOB/A. Ini­tial­ly, the total num­ber of hours, mate­r­i­al and equip­ment costs and indi­vid­ual items were clar­i­fied.

Fol­low­ing an ini­tial exclu­sion of the appli­cant and a com­plaint lodged against this, the client revoked the bid­der infor­ma­tion let­ter and entered into a new price clar­i­fi­ca­tion. This sec­ond clar­i­fi­ca­tion relat­ed in par­tic­u­lar to four specif­i­cal­ly named items in the bill of quan­ti­ties. After the appli­cant had com­ment­ed on this, the con­tract­ing author­i­ty again exclud­ed it from the award pro­ce­dure due to what it con­sid­ered to be an unrea­son­ably low price.

The pro­cure­ment cham­ber ini­tial­ly con­firmed this exclu­sion. How­ev­er, fol­low­ing an imme­di­ate appeal by the appli­cant, the Bran­den­burg High­er Region­al Court over­turned the deci­sion of the award­ing cham­ber and oblig­ed the con­tract­ing author­i­ty to re-eval­u­ate the bid in accor­dance with the legal opin­ion of the Sen­ate.

Key point of the deci­sion

The deci­sion of the High­er Region­al Court focused on the ques­tion of what require­ments are to be placed on a law­ful price dis­clo­sure and what scope a request for dis­clo­sure actu­al­ly has.

The court ini­tial­ly con­firmed that the con­tract­ing author­i­ty was in prin­ci­ple enti­tled to enter into a price clar­i­fi­ca­tion due to the sig­nif­i­cant price gap to the next bid. The Sen­ate also con­sid­ered it per­mis­si­ble to use the bid­der’s mean val­ue as an addi­tion­al indi­ca­tion of a pos­si­ble unrea­son­ably low price, which the defen­dant had formed, as all bids received were below the con­tract val­ue esti­mate.

How­ev­er, the deci­sive fac­tor was the way in which the sec­ond price clar­i­fi­ca­tion was car­ried out. In the opin­ion of the High­er Region­al Court, the renewed request for clar­i­fi­ca­tion con­sti­tut­ed a “tem­po­ral caesura”. By can­cel­ing the first bid­der infor­ma­tion let­ter and announc­ing a new price clar­i­fi­ca­tion, the pro­ce­dure was set back to the sta­tus pri­or to the first clar­i­fi­ca­tion. There­fore, only the sec­ond clar­i­fi­ca­tion let­ter was deci­sive.

In order to clar­i­fy the total price — despite the use of the word “in par­tic­u­lar” — this only referred to four specif­i­cal­ly named items accord­ing to its objec­tive explana­to­ry con­tent. Oth­er aspects, such as the total num­ber of hours, were no longer the sub­ject of a clear­ly for­mu­lat­ed request for clar­i­fi­ca­tion. The appli­cant was there­fore enti­tled to assume that she only had to explain these items.

As the appli­cant ful­filled these require­ments and the items con­cerned only account­ed for around 3.7% of the total bid price, the exclu­sion could not be based on a neg­a­tive prog­no­sis for the prop­er pro­vi­sion of ser­vices. Exclu­sion due to insuf­fi­cient clar­i­fi­ca­tion was there­fore unlaw­ful.

Tips for pub­lic clients

• For­mu­late clar­i­fi­ca­tion requests pre­cise­ly: Clients should spec­i­fy clear­ly and with­out con­tra­dic­tion which price com­po­nents are to be clar­i­fied. Unclear or ambigu­ous for­mu­la­tions are at their expense.
• Note breaks in the pro­ce­dure: If a request for clar­i­fi­ca­tion is revoked and a new price clar­i­fi­ca­tion is ini­ti­at­ed, it must be made clear whether ear­li­er doubts per­sist or are dropped.
• Clear­ly jus­ti­fy neg­a­tive fore­casts: The exclu­sion of an offer requires that the spe­cif­ic expla­na­tions request­ed are not sat­is­fac­to­ry. Gen­er­al­ized or belat­ed doubts are not suf­fi­cient.
• Pro­tect com­pe­ti­tion: Price clar­i­fi­ca­tion serves to ver­i­fy seri­ous­ness, not to sanc­tion unusu­al­ly favor­able offers.

Tips for bid­ders and fund­ing recip­i­ents

• Pay atten­tion to the word­ing: The deci­sive fac­tor is what is express­ly request­ed in the request for clar­i­fi­ca­tion. Bid­ders only have to explain what is clear­ly stat­ed.
• Pro­vide infor­ma­tion in a struc­tured and com­pre­hen­si­ble man­ner: Par­tic­u­lar­ly in the case of indi­vid­ual items, it should be explained trans­par­ent­ly why the cal­cu­la­tion is ade­quate.
• Doc­u­ment any con­tra­dic­tions on the part of the con­tract­ing author­i­ty: Unclear or con­tra­dic­to­ry jus­ti­fi­ca­tions can be deci­sive in review pro­ceed­ings.
• Use price clar­i­fi­ca­tion as an oppor­tu­ni­ty: A fac­tu­al and com­plete expla­na­tion can dis­pel the sus­pi­cion of an unrea­son­ably low offer and pre­vent exclu­sion.