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.