Update on the appro­pri­ate­ness of set­ting dead­lines for the sub­mis­sion of reserved doc­u­ments*

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.

What hap­pened?

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.

Prac­ti­cal tip

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.

Award 24

*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.

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