Ten­ders Health insur­ance com­pa­nies*

As far as can be seen from the announce­ment, the ver­sion of the invi­ta­tion to ten­der that has been pub­lished in the mean­time and was viewed on March 29, 2016, pro­vides for not only AOK Hes­sen but also AOK Rheinland/Hamburg and AOK Nor­dost as con­tract­ing author­i­ties. All three health insur­ers are pre­sum­ably procur­ing accord­ing to the mod­el used by Hesse for the Zyto ten­der. Expe­ri­ence from this ten­der is there­fore help­ful. For both bid­ding phar­ma­cists and con­sult­ing attor­neys.

In the announce­ment of March 16, 2016 (2016/S053089216), 79 inde­pen­dent ter­ri­to­r­i­al lots are formed for the areas of respon­si­bil­i­ty of the con­tract­ing author­i­ties on whose behalf the AOK Bun­desver­band GbR wish­es to pro­cure the prepa­ra­tions.

As already known from the pre­vi­ous ten­der, the ten­der­ing author­i­ty attach­es par­tic­u­lar impor­tance to proof of tech­ni­cal capa­bil­i­ty. A bun­dle of self-dec­la­ra­tions is request­ed.

The ten­der itself is car­ried out in the open pro­ce­dure. This basic deci­sion, which is prob­a­bly inevitable, has a vari­ety of con­se­quences. One is the par­tic­u­lar for­mal rig­or of the process. Bid­ders must give notice of defects with­out delay and must also com­ply with a large num­ber of oth­er require­ments. Changes to the bid doc­u­ments, to give an exam­ple, are not per­mit­ted.

Of par­tic­u­lar impor­tance, how­ev­er, is the pas­sage on third-par­ty con­trac­tors on page 28 of the afore­men­tioned notice. This is against the back­ground of the known mar­ket con­cen­tra­tion and the crowd­ing out of small­er com­pa­nies. The ref­er­ence in sec­tion VI. under num­ber 4. of the notice is strange, accord­ing to which the use of third-par­ty con­trac­tors “(also in the form of indus­tri­al man­u­fac­tur­ing com­pa­nies)” does not exclude that the par­enter­al prepa­ra­tions are man­u­fac­tured in the phar­ma­cy, nor does the use of such indus­tri­al man­u­fac­tur­ing com­pa­nies lead to a vio­la­tion of Sec­tion 21 (2) No. 1b lit. (a) AMG.”

Accord­ing to the afore­men­tioned notice, the clos­ing date is April 27, 2016 at 7:30 am. Bid­ding phar­ma­cists are already advised to keep a close eye on the pub­li­ca­tion organ should there be a change in the bid­ding peri­od in par­tic­u­lar.

*This legal tip is not a sub­sti­tute for legal advice in indi­vid­ual cas­es. By its very nature, it is incom­plete, nor is it spe­cif­ic to your case, and it also rep­re­sents a snap­shot in time, as legal prin­ci­ples and case law change over time. It can­not and does not cov­er all con­ceiv­able con­stel­la­tions, serves enter­tain­ment 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.