The sub­mis­sion of offers by e‑mail in the pro­cure­ment pro­ce­dure — a few tips*

E‑mail is the let­ter of our time, and why should it not also assume the cen­tral func­tion it deserves in the pro­cure­ment process?

Text form with­in the mean­ing of Sec­tion 126b of the Ger­man Civ­il Code (BGB)

If a ten­der in text form is suf­fi­cient for you as the con­tract­ing author­i­ty, then you must also com­mu­ni­cate this. How­ev­er, this noti­fi­ca­tion in no way excludes the use of e‑mails in the award pro­ce­dure — includ­ing for the sub­mis­sion of bids. On the con­trary, the e‑mail, used cor­rect­ly, ful­fills the text form require­ment in the sense of § 126b BGB. And quite unprob­lem­at­i­cal­ly at that.

Text form, what is it?

Now there are con­tract­ing author­i­ties that use qua­si-own text form terms in their award doc­u­ments, i.e. seem to know a fur­ther, qua­si-spe­cial text form in addi­tion to that of the BGB. I can only warn against an over­in­ter­pre­ta­tion of indi­vid­ual deci­sions of the con­tract award review bod­ies, which are rather strict with the bid­der and seem to grant the con­tract­ing author­i­ty a right to define terms. In case of doubt, text form is the long-known text form of the BGB.

E‑mail as an elec­tron­ic means of com­mu­ni­ca­tion, but …

It should be equal­ly clear that e‑mail is an elec­tron­ic means of com­mu­ni­ca­tion. So, to the extent that pro­cure­ment reg­u­la­tions require that com­mu­ni­ca­tion be elec­tron­ic, e‑mail is in play. But is that enough? If you look more close­ly, no. Because the data received must not be accessed ahead of time. I.e.: The bid­der sub­mits the bid by e‑mail, and it arrives in the e‑mail inbox of the con­tract­ing author­i­ty two hours before the dead­line. The­o­ret­i­cal­ly, the con­tract­ing author­i­ty could now open the bid, but it is not allowed to do so, and the elec­tron­ic means of com­mu­ni­ca­tion are pre­cise­ly intend­ed to ensure that it can­not do so either. Even com­bin­ing the e‑mail with encryp­tion does not help over­come this prob­lem.

So it’s a neg­a­tive?

Yes, no bid­ding by e‑mail. But what applies if it is express­ly per­mit­ted? Many con­tract­ing author­i­ties write into their pro­cure­ment and award reg­u­la­tions that sub­mis­sion of bids by e‑mail should be per­mit­ted, at least up to cer­tain con­tract val­ues. Here again: Cau­tion! The key ques­tion is whether the con­tract­ing author­i­ty is allowed to stip­u­late this at all. Above the EU thresh­old val­ues, the answer is, in my opin­ion, quite clear­ly no! Below the thresh­old val­ues, it may be nec­es­sary to take a dif­fer­en­ti­at­ed view. As an exam­ple, the fol­low­ing, ini­tial­ly some­what abstract con­sid­er­a­tion: A con­tract­ing author­i­ty that makes a spec­i­fi­ca­tion for pro­cure­ments sub­ject to state pro­cure­ment law that devi­ates from state pro­cure­ment law, e.g. the UVgO, with­out being com­pe­tent to do so, is act­ing unlaw­ful­ly. To put it more prac­ti­cal­ly: If a munic­i­pal­i­ty allows bids to be sub­mit­ted by e‑mail, but the pro­cure­ment is sub­ject to the state UVgO, which has been declared applic­a­ble in the rel­e­vant fed­er­al state by sim­ple ref­er­ence — i.e. with­out any addi­tions or restric­tions — then this munic­i­pal­i­ty is in error and is car­ry­ing out mass­es of ille­gal awards.

Atten­tion! Chance for bid­ders!

If the sub­mis­sion of bids by e‑mail is there­fore inad­mis­si­ble, but nev­er­the­less occurs at the request of the con­tract­ing author­i­ty or is per­mit­ted by the con­tract­ing author­i­ty, then oppor­tu­ni­ties arise for unsuc­cess­ful bid­ders. They may be able to obtain a post­pone­ment of the award pro­ce­dure. This is because impor­tant for­mal require­ments have been vio­lat­ed, and thus it can­not be ruled out that the award pro­ce­dure was car­ried out with­out manip­u­la­tion. This is there­fore a gate­way for all kinds of annoy­ing dis­putes, which sen­si­ble con­tract­ing author­i­ties should either not open in the first place or close again imme­di­ate­ly.

*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.

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