Protection and promotion of SMEs through procurement procedures
§ Section 97 (4) sentence 1 GWB clearly states: SMEs’ interests must be given priority when awarding public contracts.
What does that mean in concrete terms?
Lot splitting is the most important instrument for promoting the protection of SMEs. Accordingly, it is also regulated in the other sentences of Section 97 (4) ARC. According to this, specialized and partial lots must be formed. Any deviation from this principle must be — well — justified.
Lot splitting is just one of many instruments
However, public clients can also promote SMEs in other ways. We have compiled a few possibilities for you here.
If you are a public sector client or funding recipient and would like to support small or medium-sized enterprises, please contact us.
And if you, as an SME, are discouraged from participating in a procurement procedure, we will show you ways of persuading the client to change their mind.
Supporting small and medium-sized enterprises as a public client — 7 possibilities
1. facilitate the formation of bidding consortia
Contracting authorities can facilitate the formation of bidding consortia. For example, they can refrain from requiring bidders and candidates to adopt certain legal forms after the contract has been awarded. However, it is often helpful if contracting authorities explain exactly how a bidding consortium is to meet the requirements of the award procedure.
2. no joint and several liability of economic-financial suitability lenders
The procedural regulations allow joint and several liability to be demanded from economic and financial aptitude lenders. However, this deters many entrepreneurs and companies. They prefer not to make their financial suitability available to potential bidders and applicants.
3. no exaggerated suitability requirements (especially no minimum turnover)
Sometimes the suitability requirements are very high. The function of suitability as a rough filter is then lost. The suitability test mutates into a quasi bid evaluation. It is a real gain for SMEs if the suitability requirements are not too high. Especially in financial terms. The minimum turnover requirement makes it difficult for many SMEs to successfully participate in the award procedure.
4. requesting kmU for direct awards, negotiated awards and restricted invitations to tender
Under certain conditions, contracting authorities and funding recipients may award services in procedures without ex ante transparency. These may include direct awards, negotiated awards and restricted invitations to tender. They are not completely free to choose the companies they invite to submit tenders. But they may focus on kmU.
5. use of the national quota system
According to Section 3 (9) VgV, the contracting authority may deviate from the principle that the total value of all lots must be taken as a basis when awarding individual lots. Only certain conditions must be met or observed (value limits, prior planning of the rerailing, etc.).
6. tender framework agreements in the multi-partner model
The client does not have to award the framework contract to just one company. It can approve several companies and switch between them under certain conditions.
7. SME clauses
Even if a GU/GÜ/TU/TÜ award is desired, SMEs can be supported. We will be happy to show you how this can be done.
All options at a glance
How we can help you
If you are a contracting authority, bidder or applicant, we can represent you before the Public Procurement Chamber and the Higher Regional Court Senate.
For a non-binding inquiry, please contact one of our contact persons directly by phone or e‑mail or use the contact form.
Send us your request
How to reach us
Main location Leipzig
Lessingstraße 2
04109 Leipzig
Germany
Contact us
Phone: +49 341 238203 — 00
Fax: +49 341 238203 — 29
E‑mail: info@abante.de
