In public procurement procedures, there are many special features and challenges that both contracting authorities and bidders must take into account. A recent decision by the North Bavarian Public Procurement Chamber dated September 11, 2024 (Ref.: RMF-SG21-3194–9‑18) dealt with when bidder questions must be answered publicly. In this article, we summarize the key points for you.
Click here for the video of the discussion of the decision:
Bidder questions and their role in the award procedure — Decision of the North Bavarian Public Procurement Chamber
In a recent decision, the North Bavarian Public Procurement Chamber (VK) clarified how to deal with bidder questions in the context of award procedures. In a procedure in which planning services for bridges were tendered in two lots, a dispute arose about how to deal with questions and how to answer them. The decision has both practical and legal significance for contracting authorities and bidders.
Background and facts
The tender comprised planning services in two lots, each for construction supervision and construction management for a temporary bridge and bypass. From the outset, the procedure was characterized by numerous changes and queries, which led to a total of 23 change notices. Particularly striking: some answers to bidder questions were not communicated publicly by the client, but only privately to individual bidders.
A few days before the bid deadline, one bidder asked a series of questions, some of which were only answered on the day the deadline expired — again, only privately. After submitting his bid, this bidder lodged a complaint, as he felt that the answers would also have been relevant for other participants.
Decision-making by the public procurement tribunal: principle and exceptions
The procurement chamber confirmed the general principle that answers to bidders’ questions must always be made available to all bidders. This is necessary to ensure equal opportunities and transparency in competition. However, it named exceptions that may justify a private response:
- Individual misunderstanding of a bidder: If the question has no general relevance, it may be answered individually.
- Business secrets: Information concerning trade or business secrets may be protected.
- Lack of material connection: Questions without a recognizable connection to the tender can also be clarified privately.
In this case, however, the VK Nordbayern saw violations, as answers to questions of relevance to the calculation — such as the scope of services for plan and supplementary audits — were only passed on privately. Such information should have been made available to all bidders.
Consequences and infringement
The awarding chamber found that the private answering of these relevant questions violated the rights of the other bidders. It could not be ruled out that the additional information would have influenced the applicant’s competitive success by causing other bidders to calculate their bids differently. The CC therefore decided to suspend the procedure and conduct it again.
Critical classification: Where the procurement chamber leaves leeway
The decision of the VK Nordbayern is largely in line with established case law, but shows a generous interpretation of the exemption rules. This harbors risks:
- Individual responses: The indication that private responses are permissible in the event of “misunderstandings” or facts that are already known could tempt clients to be too lax in their approach to the principle of transparency.
- Passing on information in the event of corrections: According to many experts, even minor information, such as revised documents, should also be made available to all bidders in order to ensure equal opportunities.
However, the awarding chamber remains stringent in its explanations: As soon as a question is asked which the awarding authority answers, the answers must be addressed to all bidders — regardless of how tight the deadline for submitting a bid is.
Conclusion: transparency wins
The decision of the VK Nordbayern underlines the fact that transparency is an indispensable cornerstone of the award procedure.
Bidders should be able to trust that information is provided equally and comprehensively.
Clients are well advised to communicate bidder questions and answers strictly anonymously and publicly in order to avoid unnecessary legal risks.
Further insights and detailed explanations of the decision can be found in our video on the YouTube channel abante Rechtsanwälte. Take a look!
