Types of ser­vices under pub­lic pro­cure­ment law — what to do with mixed ser­vices?

Mixed ser­vices under pub­lic pro­cure­ment law exist if a pub­lic con­tract or con­ces­sion is made up of dif­fer­ent ser­vices, e.g. ser­vices and con­struc­tion ser­vices or con­struc­tion and sup­ply ser­vices. It is some­times dif­fi­cult to deter­mine the pro­ce­dur­al rules accord­ing to which such mixed con­tracts must be award­ed.

Incor­rect clas­si­fi­ca­tion, seri­ous con­se­quences

In the case of a mixed con­tract, the pro­ce­dur­al rules to be applied must be exam­ined very care­ful­ly. If the con­tract­ing author­i­ty choos­es the wrong pro­ce­dur­al rules, it com­mits a seri­ous pro­cure­ment error. This applies in par­tic­u­lar if the wrong thresh­old val­ue is cho­sen. For exam­ple, if the con­tract­ing author­i­ty wrong­ly assumes that a deliv­ery ser­vice worth €1,000,000 is in fact a con­struc­tion ser­vice, it will award the con­tract in accor­dance with nation­al law, name­ly the first sec­tion of VOB/A. The con­tract­ing author­i­ty would have had to award the con­tract on a Europe-wide basis. The con­tract­ing author­i­ty should have pub­lished a Europe-wide con­tract notice and award­ed the con­tract in accor­dance with the Pub­lic Pro­cure­ment Ordi­nance (VgV).

Mixed ser­vices accord­ing to § 110 GWB

Mixed con­tracts con­tain var­i­ous ser­vices, e.g. ser­vices and sup­plies. The legal nature of the con­tract under pub­lic pro­cure­ment law is deter­mined by the ser­vices that form the main sub­ject mat­ter, see Sec­tion 110 (1) GWB. The val­ue of the ser­vice can be an indi­ca­tion, but the val­ue alone is not deci­sive.

The val­ue ratios alone are not deci­sive

Rather, the spe­cif­ic objects of per­for­mance must be clear­ly defined in terms of type and scope. The main objects are the ser­vices that char­ac­ter­ize the con­tract as such. Not, how­ev­er, the oblig­a­tions of a sub­or­di­nate or sup­ple­men­tary nature that mere­ly fol­low from the actu­al sub­ject mat­ter of the con­tract.

Ser­vices whose parts are sub­ject to dif­fer­ent legal reg­u­la­tions, in accor­dance with Sec­tion 111 GWB

§ Sec­tion 111 GWB applies to con­tracts and con­ces­sions whose com­po­nents are sub­ject to dif­fer­ent legal reg­u­la­tions. The pro­vi­sion reg­u­lates the award of a mixed con­tract if this con­tract con­tains dif­fer­ent pro­cure­ment com­po­nents and these com­po­nents fall under the scope of appli­ca­tion of dif­fer­ent EU pro­cure­ment direc­tives. In con­trast to Sec­tion 110 GWB, the diver­si­ty of the com­po­nents is not to be deter­mined pri­mar­i­ly from a legal per­spec­tive, but rather with regard to geo­graph­i­cal demar­ca­tions, tech­ni­cal, orga­ni­za­tion­al and logis­ti­cal char­ac­ter­is­tics, as well as dif­fer­en­ti­at­ed bid­ding mar­kets. § Sec­tion 111 ARC is rel­e­vant, for exam­ple, if one part of the con­tract is sub­ject to the pro­vi­sions on the award of con­ces­sions and anoth­er part is sub­ject to the pro­vi­sions on the award of pub­lic con­tracts by con­tract­ing author­i­ties.

The reg­u­la­tions in Sec­tion 111 GWB on which pro­ce­dur­al rules apply when are quite com­pli­cat­ed. It often depends on the respec­tive val­ue of the part of the con­tract.

Ser­vices com­pris­ing var­i­ous activ­i­ties pur­suant to Sec­tion 112 GWB

Sec­tion 112 GWB cov­ers con­stel­la­tions in which one and the same pro­cure­ment is intend­ed for the per­for­mance of dif­fer­ent activ­i­ties of the con­tract­ing author­i­ty and is there­fore sub­ject to dif­fer­ent pro­cure­ment law regimes. Such a con­stel­la­tion exists if the activ­i­ty cov­ered by the con­tract is part­ly a sec­tor activ­i­ty with­in the mean­ing of Sec­tion 102 GWB and is also intend­ed for the per­for­mance of anoth­er activ­i­ty with­in the scope of anoth­er direc­tive, e.g. for defense and secu­ri­ty pur­pos­es or as part of gen­er­al pro­cure­ment activ­i­ties.

The reg­u­la­tions in Sec­tion 112 ARC on when which pro­ce­dur­al rules are to be applied are even more com­pli­cat­ed than in Sec­tion 111 ARC. The applic­a­ble rules of pro­ce­dure are deter­mined depend­ing on which activ­i­ty coin­cides with which oth­er activ­i­ty.

How we can help you

If you, as a con­tract­ing author­i­ty or fund­ing recip­i­ent, are not quite sure which reg­u­la­tions you need to fol­low, sim­ply ask us.

If you as an appli­cant or bid­der have the feel­ing that you are being denied more favor­able pro­ce­dur­al rules and the asso­ci­at­ed bid­der-pro­tect­ing rights, please also con­tact us direct­ly.

For a non-bind­ing inquiry, please con­tact one of our con­tact per­sons direct­ly by phone or e‑mail or use the con­tact form.