Do you want to procure support services for your data center? Or do you need IT consulting services? The question always arises as to how you award these services.
The basics are simple. If the EU threshold is reached, you issue a Europe-wide invitation to tender. If it is not reached, the tender is national. Since you are allowing an external party access to data that may be particularly sensitive, you will want to take some precautions during the procurement process. Possibly an order processing contract. Perhaps also self-declarations on data security.
So far, so clear. But how do you structure your contractual relationship?
EVB-IT Service Agreement
In principle, you can refer to the EVB-IT service contract. At the time of publication of this article, the 2018 version applies. In the user notes you will find some interesting comments on one of the most unpleasant topics in IT service procurement: unauthorized labour leasing and bogus self-employment.
It is rightly made clear in the user instructions that — in the event of contradictions between contract and practice — the practice decides. About what? About whether the third party is integrated into your business. Whether or not there is bogus self-employment.
You are probably wondering what else there is to check. After all, the EVB-IT service contract specifies everything. Perhaps you are also of the opinion that you have no influence on what “the practice” makes of your contract.
We think it’s not quite like that. First of all, take the risk seriously. EVB-IT service contract or not: Case law is constantly changing, especially in this area. Take a look at the world of hospitals, for example. For some time now, fee-based physicians have been hit. They are increasingly being classified as “pseudo-self-employed”.
What to do?
What can you do in the context of awarding? First of all, you could advise against a real award. Conceivable are tender-free “1/4‑employment relationships” or 450-euro contracts.
If the staffing plan or similar does not permit this: Alternatively, extended versions of the EVB IT service contract can be considered. These arrangements should ensure that a “clean” self-employed person does not become a “bogus self-employed person” when the contract is executed. They should increase legal certainty — and capture the “lived practice”.
If you are now wondering what such designs might look like: feel free to contact us.
*This legal tip is no substitute for legal advice in individual cases. By its very nature, it is incomplete, it does not relate to your case, and it also represents a snapshot, as the legal basis and case law change over time. It cannot and does not cover all conceivable constellations, serves maintenance and initial orientation purposes and is intended to motivate you to clarify legal issues at an early stage, but not to discourage you from doing so.