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.