The best-bid­der-prin­ci­ple under the Thuringia Pub­lic Pro­cure­ment Act 2019*

The new Thuringia Pub­lic Pro­cure­ment Act will come into force on Decem­ber 1, 2019. Much praised in the run-up: the so-called best bid­der prin­ci­ple in Sec­tion 12a of the Act. But the dev­il is in the details.

Under the label of reduc­ing bureau­cra­cy — and impres­sive cal­cu­la­tions of “sav­ings per pro­cure­ment process” — the Thuringian leg­is­la­ture is gift­ing con­tract­ing author­i­ties, bid­ders and appli­cants with the so-called best bid­der prin­ci­ple. The reg­u­la­tion in § 12a ThürVgG has the fol­low­ing con­tents:

• Accord­ing to para­graph 1, dec­la­ra­tions and evi­dence pur­suant to the ThürVgG must in future only be sub­mit­ted by the best bid­der. This require­ment is bind­ing on the con­tract­ing author­i­ty. It may no longer require the sub­mis­sion of these dec­la­ra­tions and evi­dence with the bid.
• Pur­suant to para­graph 2, the con­tract­ing enti­ty must make ref­er­ence to this in the notice or the doc­u­ments. At the same time, the con­tract­ing enti­ty must set a time lim­it with­in which the best bid­der must sub­mit the rel­e­vant doc­u­ments upon request. This peri­od must be between 3 and 5 work­ing days.
• Accord­ing to para­graph 3, the peri­od begins on the day after the invi­ta­tion is sent. Not: on the day of receipt of the invi­ta­tion! The dead­line may be extend­ed “in excep­tion­al cas­es”.
• Para­graph 4 stip­u­lates that if the bid is not sub­mit­ted on time, it must be exclud­ed. In this case, the next bid in the eval­u­a­tion sequence must be used.
• Accord­ing to para­graph 5, the con­tract­ing author­i­ty may devi­ate from the best bid­der prin­ci­ple in cas­es of “objec­tive urgency beyond the con­trol of the con­tract­ing author­i­ty”.

Ques­tions upon ques­tions. The fol­low­ing is a small selec­tion . In addi­tion, a prac­ti­cal case that makes it clear that there will be dis­putes. And final­ly, a con­clu­sion that can be only slight­ly mer­ci­ful to the Thuringian leg­is­la­tor.

Does Sec­tion 12a ThürVgG also refer to dec­la­ra­tions and evi­dence pur­suant to VOB/A and/or UVgO which only apply by virtue of ref­er­ence in Sec­tion 1 (2) ThürVgG, i.e. which are ulti­mate­ly also reg­u­lat­ed “in this Act”, i.e. in the ThürVgG? Or are actu­al­ly only dec­la­ra­tions and proofs accord­ing to §§ 10, 11, 12 and 17 ThürVgG meant?

How does the reg­u­la­tion relate to Sec­tion 41 (2) UVgO?

Is it nec­es­sary to first deter­mine the order in which the bids are eval­u­at­ed — includ­ing bids that have already been reject­ed at first glance — before the invi­ta­tion to ten­der pur­suant to Sec­tion 12a of the ThürVgG may be sent out?

Has it been rec­og­nized — and is it real­ly in the inter­est of the bid­ders — that the award pro­ce­dures will in all like­li­hood be pro­longed if each eval­u­a­tion is fol­lowed by a peri­od of 3 to 5 days and a pos­si­bly even neg­a­tive review?

Is it real­ly in the inter­est of the bid­ders to be giv­en a dead­line dur­ing the ongo­ing eval­u­a­tion process that ends after 3, 4 or 5 work­ing days? If the dead­line expires with­out result, the bid is inevitably exclud­ed?

A case to illus­trate an obvi­ous prob­lem sit­u­a­tion: A, B and C each sub­mit a bid. A is in first place in the eval­u­a­tion sequence, which can be quick­ly deter­mined because in our exam­ple case — as is so often the case — the price is the only award cri­te­ri­on. How­ev­er, the con­tract­ing author­i­ty has stip­u­lat­ed a rather elab­o­rate sam­pling pro­ce­dure. Does the con­tract­ing author­i­ty now have to car­ry this out not only for the like­ly best bid­der A, but also for B and C? Above the EU thresh­olds, there are numer­ous deci­sions of the con­tract award review bod­ies that allow small short­cuts, at least in clear cas­es. The award­ing author­i­ty may there­fore not have to eval­u­ate every bid in full. The Thuringian leg­is­la­tor is stricter in this respect. It stip­u­lates that the invi­ta­tion to sub­mit dec­la­ra­tions in accor­dance with Sec­tions 10, 11, 12 and 17 ThürVgG must not be sent until all bids have been eval­u­at­ed in full. I.e., when all bids have been sam­pled. But is this the way it is sup­posed to be? And what if A does not observe the 3‑day dead­line (what is actu­al­ly a “work­ing day”?)? The award­ing author­i­ty excludes him — and then car­ries out the sam­pling of the remain­ing offers, which may take 1 to 2 weeks. Won’t A com­plain about his exclu­sion with the argu­ment that he was giv­en too ear­ly a dead­line for sub­mit­ting the dec­la­ra­tions, after all, the con­tract­ing author­i­ty has not yet drawn up an eval­u­a­tion sequence as required by Sec­tion 12a (4) ThürVgG.

Ques­tions upon ques­tions. As is so often the case, the legal prac­ti­tion­er can only hope for the enforce­ment deficit in pub­lic pro­cure­ment law and the peace­able­ness of the bid­ders. For the Thuringian leg­is­la­tor, how­ev­er, well meant is not well done.

*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.