The appropriateness of the time limit for obtaining reserved statements depends on the circumstances of the individual case, although a period of 6 working days is generally too short.
The invitation to tender was for shell construction work. Within the scope of a repetition of the bid review, the respondent requested the applicant to submit declarations of commitment for the subcontractor services named in the bid within 2.5 working days. The respondent had reserved the right to submit subcontractor services in the award documents (cf. Section 16 No. 4 EU VOB/A). The applicant complied with this request, but did not adhere to the deadline set by the respondent.
Thereupon, the respondent excluded the bid of the applicant. The respondent rejected the applicant’s complaint directed against this.
By way of the review procedure, the applicant claims that the exclusion of its bid is unlawful due to the unreasonably short deadline set by the contracting authority.
What has been decided?
The VK has decided that the appropriateness of a time limit for the submission of evidence or declarations within the meaning of Section 16 No. 4 EUVOB/A, which the contracting authority has reserved for itself, must always be determined on the basis of the circumstances in the individual case.
The more important and time-consuming it is to obtain a declaration, the longer the deadline must be. This applies in particular if the bidder is dependent on the cooperation of third parties (authorities, subcontractors) to obtain a declaration.
There is no obligation on the part of the bidder to obtain such evidence as a precautionary measure before submitting a bid.
A period of 6 days for requesting reserved documents is usually not sufficient, and a period of less than one week is usually unreasonable.
A distinction must be made between the deadline for the submission of documents requested by the contracting authority for the first time and the deadline within which the contracting authority gives the tenderer the opportunity to submit missing documents.
The latter is regulated in Section 16a (4) sentence 2 VOB/A EU. Accordingly, the period for the subsequent submission of missing documents shall not exceed six calendar days.
§ Section 16 No. 4 VOB/A EU, on the other hand, regulates the case where the contracting authority requests documents for the first time which it has reserved the right to submit in the tender documents.
Accordingly, a different submission deadline may be set for the initial request for documents.
In its decision of 14.12.2015 (Ref.: 13 Verg 9/15), the Higher Regional Court of Celle ruled that an unreasonably short deadline in public procurement law does not set a reasonable deadline in motion. In this case, the contracting authority must set the bidder a new, reasonable deadline.
*This legal tip is not a substitute for legal advice in individual cases. By its very nature, it is incomplete, nor is it specific to your case, and it also represents a snapshot in time, as legal principles and case law change over time. It cannot and does not cover all conceivable constellations, serves entertainment 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.