Scaf­fold­ing work is a sep­a­rate spe­cial­ist lot

On August 18, 2025, the Fed­er­al Pub­lic Pro­cure­ment Cham­ber ruled in its deci­sion (Ref.: VK 2–63/25) that scaf­fold­ing work con­sti­tutes a sep­a­rate spe­cial­ist lot and that the over­all award of facade and scaf­fold­ing work was nei­ther tech­ni­cal­ly nor eco­nom­i­cal­ly jus­ti­fied in this case.

Our video dis­cussing the judg­ment:

Facts: The unde­sir­able over­all award

The client invit­ed ten­ders for a total of 19 spe­cial­ist lots as part of an open ten­der pro­ce­dure for the ener­gy-effi­cient refur­bish­ment of a build­ing com­plex. The “façade work” lot includ­ed not only the demo­li­tion and new con­struc­tion of the exter­nal ther­mal insu­la­tion com­pos­ite sys­tem (ETICS), but also the nec­es­sary scaf­fold­ing work. The spec­i­fi­ca­tions explic­it­ly pro­vid­ed for scaf­fold­ing erec­tion for third par­ties (façade and roof trades).

The client jus­ti­fied the com­bi­na­tion of the scaf­fold­ing and façade work in one lot with the fol­low­ing argu­ments:

• Tech­ni­cal neces­si­ty: The sequen­tial dis­man­tling and con­struc­tion of the ETICS from top to bot­tom or from bot­tom to top requires short-term and con­stant adjust­ments to the scaf­fold­ing. Only an over­all con­tract award would enable the nec­es­sary rapid coor­di­na­tion and man­age­able pro­ce­dure that has been prac­ticed thou­sands of times.
• Eco­nom­ic effects: Close dove­tail­ing would lead to syn­er­gy effects and avoid delays caused by the usu­al long call-off peri­ods (4 to 8 weeks) for exter­nal scaf­fold­ers. In addi­tion, due to the low con­tract val­ue for the scaf­fold­ing (approx. 1.94% of the total con­tract val­ue), the sep­a­rate award­ing of con­tracts should be avoid­ed as an uneco­nom­i­cal splin­ter lot.

The appli­cant, a pure scaf­fold­ing com­pa­ny, con­sid­ered this over­all award to be inad­mis­si­ble. It argued that scaf­fold­ing work con­sti­tutes an inde­pen­dent spe­cial­ist trade which, accord­ing to the HwOuaÜG (Tran­si­tion­al Act on the Occa­sion of the Sec­ond Act Amend­ing the Crafts Code), must in any case be car­ried out by a scaf­fold­er reg­is­tered in the Crafts Reg­is­ter — i.e. only by a sub­con­trac­tor of the façade builder.

Key point of the deci­sion: Coor­di­na­tion costs must not be passed on

The VK Bund ruled in favor of the appli­cant and found a breach of the require­ment to award spe­cial­ist lots in accor­dance with Sec­tion 97 (4) sen­tence 2 GWB. The cham­ber con­firmed that scaf­fold­ing ser­vices con­sti­tute a spe­cial­ist lot due to the inde­pen­dent require­ments under craft law (sep­a­rate train­ing occu­pa­tion, mas­ter crafts­man title and col­lec­tive agree­ment), which was not dis­put­ed in prin­ci­ple by the client.

The cham­ber reject­ed the argu­ment of the tech­ni­cal com­plex­i­ty of the façade work. There was no com­pelling need for an over­all award, as accord­ing to the client itself, the work had been car­ried out “thou­sands of times” and was easy to han­dle in prac­ti­cal con­struc­tion terms, which argued against any par­tic­u­lar com­plex­i­ty. In addi­tion, there was no tech­ni­cal neces­si­ty for an over­all award because the scaf­fold­ing work had to be car­ried out by a spe­cial­ized scaf­fold­er as a sub­con­trac­tor or bid­ding con­sor­tium any­way due to the pro­vi­sions of trade law (HwOuaÜG) and the use for oth­er trades (roof). The con­trol­la­bil­i­ty in the indi­vid­ual lot was giv­en, as the nec­es­sary adap­ta­tions and con­ver­sions could be specif­i­cal­ly planned by the spe­cial­ist plan­ner from the out­set (e.g. 10 or 20 con­ver­sions per house). The require­ments for prompt and imme­di­ate imple­men­ta­tion could eas­i­ly be defined as a con­trac­tu­al basis in a sep­a­rate ten­der for the scaf­fold­ing con­struc­tion lot and would thus avoid wait­ing times.

The eco­nom­ic argu­ments were also reject­ed by the Cham­ber. The clien­t’s desire to achieve faster coor­di­na­tion and a com­mon com­mer­cial inter­est and thus avoid obstruc­tion notices, con­struc­tion time exten­sions and fur­ther remu­ner­a­tion claims did not con­sti­tute a per­mis­si­ble eco­nom­ic or tech­ni­cal rea­son. The leg­is­la­tor made this deci­sion by delib­er­ate­ly accept­ing the increased coor­di­na­tion effort that aris­es when divid­ing the con­tract into spe­cial­ist lots in Sec­tion 97 (4) GWB and impos­ing this on the client. Sim­i­lar­ly, a split lot argu­ment for sup­port­ing ser­vices such as scaf­fold­ing would be mis­guid­ed, as these nat­u­ral­ly lag behind the main ser­vices in terms of val­ue. In addi­tion, scaf­fold­ing account­ed for 10 to 20 per­cent of the façade work itself, which argued against the assump­tion of an uneco­nom­i­cal splin­ter lot.

As a result, the over­all award was inad­mis­si­ble. The client had to ten­der the scaf­fold­ing ser­vices in a sep­a­rate spe­cial­ist lot if the inten­tion to pro­cure con­tin­ued.

Tips for pub­lic clients: Stay true to the lots

The rul­ing under­lines that the statu­to­ry require­ment to award spe­cial­ist lots is one of the main pil­lars of pub­lic pro­cure­ment law. The desire for sim­ple coor­di­na­tion or the avoid­ance of inter­faces only jus­ti­fies an over­all award in rare excep­tion­al cas­es.

• Manda­to­ry sep­a­ra­tion: As a rule, scaf­fold­ing ser­vices must always be ten­dered as a sep­a­rate spe­cial­ist lot . Sce­nar­ios that jus­ti­fy an excep­tion are hard­ly con­ceiv­able.
• Clear spec­i­fi­ca­tion: Instead of group­ing ser­vices togeth­er, define the spe­cial fea­tures of the con­struc­tion project in the ten­der doc­u­ments for the indi­vid­ual lot. If, for exam­ple, quick suc­ces­sive retro­fits are required, this must be pre­cise­ly spec­i­fied in the spec­i­fi­ca­tions of the scaf­fold­ing lot.
• Coor­di­na­tion effort as a duty: Plan and bud­get explic­it­ly for the increased coor­di­na­tion effort that aris­es when award­ing lots. This is required by law and must be borne by the client.
• No gen­er­al­ized expe­ri­ence: Gen­er­al ref­er­ences to bad expe­ri­ences with exter­nal scaf­fold­ers (“call-off peri­ods of 4 to 8 weeks”) are not suf­fi­cient to jus­ti­fy an over­all award. The jus­ti­fi­ca­tion must relate to the spe­cif­ic indi­vid­ual case and its par­tic­u­lar tech­ni­cal cir­cum­stances.

Tips for bid­ders and fund­ing recip­i­ents: Active­ly report vio­la­tions of lot bids

For bid­ders, espe­cial­ly spe­cial­ized com­pa­nies (such as scaf­fold­ers in this case), the lot split­ting require­ment is an impor­tant pro­tec­tive mech­a­nism that ensures access to pub­lic con­tracts.

• Mon­i­tor the mar­ket: In ten­ders, check whether inde­pen­dent spe­cial­ist trades such as scaf­fold­ing, spe­cial IT ser­vices, clean­ing ser­vices etc. have been inte­grat­ed into a larg­er lot with­out per­mis­sion.
• Rea­son for com­plaint: If there is a breach of Sec­tion 97 (4) GWB because a spe­cial­ist lot was not ten­dered sep­a­rate­ly, this is a clear rea­son for com­plaint.
• Check mul­ti-client capa­bil­i­ty: Con­sid­er whether you could offer the sep­a­rate ser­vice if it had been put out to ten­der sep­a­rate­ly. The appli­cant in the present case explic­it­ly con­firmed in the pro­ceed­ings that it can offer and per­form the scaf­fold­ing ser­vices put out to ten­der in the event of a sep­a­rate invi­ta­tion to ten­der.