Review procedures are good — 2 advantages for bidders, 1 advantage for clients
The common image of review procedures is distorted, not to say wrong. Procurement review procedures do not have a slowing or even delaying effect, they are quality guarantors. Once again: they increase the quality of procurement.
If that’s not enough, here are three tangible benefits, two for bidders and applicants and one for contracting authorities.
Advantage for bidder no. 1: Previously unsuccessful bidders are awarded the contract or at least given a second chance
As a rule, the bidder cannot apply for the contract to be awarded to him. Sometimes the review bodies do make this request. But these are exceptions.
In most cases, the review bodies merely oblige the contracting authority to repeat a certain stage of the procedure. And as a result of this repetition, the previously unsuccessful bidder is given another chance to prevail.
You haven’t experienced this yet? Maybe you went about it the wrong way! Talk to us!
The reasons for the late success, the award of the contract to one’s own company after a successful complaint and successfully contested review proceedings, are manifold. Here is a small selection of possible reasons:
- (1) Most employees of most authorities and public clients are professional. They know that it is not “against them personally” and decide in the interests of their organization.
- (2) Previously preferred bidders make mistakes in the repetition. Sometimes, however, they simply lose interest in the contract.
- (3) The previously unsuccessful bidder takes the helm and now shapes the awarding of the contract more consciously and successfully in its own interests than it did before.
Advantage for bidder no. 2: Bidders submitting complaints and later seeking review get to know the award and the contracting authority like nobody else
Before the award is after the award. It is important to understand this sentence. Hardly any award is a “one of a kind” award. It inevitably returns. Sometimes in a different form, in a different area, from a different client. But it never leaves us.
A bidder who has plowed his way through the shoals of an award, especially in the event of a complaint or dispute, is well prepared for future awards. They get to know the contracting authority’s awarding chamber and the contracting authority better. They will gain insight into parts of the file and the review procedure. The black box “contracting authority” suddenly becomes quite gray. What the bidder makes of it in the future is up to his commercial skills.
Do you have no idea what commercial advantages you can gain from an intensive dispute over an award? If so, please do not hesitate to contact us.
Advantage for client no. 1: The review procedure protects you against claims for damages
Very often, contracting authorities wish they could initiate a public procurement review procedure on their own initiative. There is no question that they cannot. But it would help them if they could. After all, anyone who commits breaches of procurement law may be liable for damages.
Have you never experienced a claim for damages as a public client? We can help you keep it that way. Please do not hesitate to contact us.
In fact, there is a risk of damages in almost every procedural situation: if the procedure is annulled, if a first-placed bidder is excluded and even if a candidate is excluded from the competition.
The case law is still in flux after years, but certain basic principles are clear. These include: A contract award review procedure is usually not a mandatory prerequisite for being able to claim damages later on. The Federal Court of Justice clarified this in 2019 in a highly regarded decision.
A far-reaching decision that many procurers are still hardly aware of. According to this decision, bidders can demand compensation for their damages even if they have not lodged a complaint, let alone appealed to the procurement chamber.
How can you protect yourself and your company against a claim for damages? By reviewing and developing your procurement compliance together with us. Feel free to contact us!
And why does the review procedure help the contracting authority to minimize the risk of damages? Well, he can be downright grateful if a bidder in an unclear situation pursues the review. Because then there are only two realistic outcomes: if the bidder wins, the contracting authority simply has to repeat the procedural stage. Possible claims for damages are off the table, because there is no damage. If the bidder loses, subsequent claims for damages are extremely unlikely, if not impossible. After all, the procurement chamber ruled in favor of the contracting authority.
A comfortable situation for the public sector. And it only arises because and to the extent that the review procedure was pursued.
abante Attorneys at Law
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