In prin\u00adci\u00adple, each con\u00adtract\u00ading author\u00adi\u00adty is free to deter\u00admine the ser\u00advice to be put out to ten\u00adder accord\u00ading to its indi\u00advid\u00adual ideas and to open com\u00adpe\u00adti\u00adtion only in this form. There\u00adfore, it alone decides on the scope of the ser\u00advices to be award\u00aded and, if nec\u00ades\u00adsary, whether sev\u00ader\u00adal ser\u00advice units are to be formed and award\u00aded sep\u00ada\u00adrate\u00adly.
\nIn the review pro\u00adceed\u00adings, the deci\u00adsion of the con\u00adtract\u00ading author\u00adi\u00adty is to be reviewed sole\u00adly as to whether it was not based on extra\u00adne\u00adous, arbi\u00adtrary or dis\u00adcrim\u00adi\u00adna\u00adto\u00adry con\u00adsid\u00ader\u00ada\u00adtions, based on its hori\u00adzon of knowl\u00adedge at the time of the deci\u00adsion on the deter\u00admi\u00adna\u00adtion of the sub\u00adject mat\u00adter of the pro\u00adcure\u00adment; in this respect, the con\u00adtract\u00ading author\u00adi\u00adty has con\u00adsid\u00ader\u00adable lee\u00adway in its assess\u00adment.
\nIf the deter\u00admi\u00adna\u00adtion of the pro\u00adcure\u00adment require\u00adment is made on the basis of objec\u00adtive and order-relat\u00aded rea\u00adsons in a non-dis\u00adcrim\u00adi\u00adna\u00adto\u00adry man\u00adner, any result\u00ading restric\u00adtive effect on com\u00adpe\u00adti\u00adtion must gen\u00ader\u00adal\u00adly be accept\u00aded.
\nThe free\u00addom to autonomous\u00adly deter\u00admine pro\u00adcure\u00adment require\u00adments is restrict\u00aded by the fact that, for rea\u00adsons of strength\u00aden\u00ading small and medi\u00adum-sized enter\u00adpris\u00ades, ser\u00advices are gen\u00ader\u00adal\u00adly to be award\u00aded in lots, Sec\u00adtion 97 (1). 4 P. 2 GWB.
\nThe first pre\u00adreq\u00adui\u00adsite is that the ten\u00addered ser\u00advice can be award\u00aded in batch\u00ades. For this deter\u00admi\u00adna\u00adtion, it is of par\u00adtic\u00adu\u00adlar impor\u00adtance whether a sep\u00ada\u00adrate sup\u00adpli\u00ader mar\u00adket with spe\u00adcial\u00adized com\u00adpa\u00adnies has devel\u00adoped for the spe\u00adcif\u00adic ser\u00advice; in this respect, the cur\u00adrent mar\u00adket con\u00addi\u00adtions are of essen\u00adtial impor\u00adtance.
\nAn over\u00adall award shall only be per\u00admis\u00adsi\u00adble as an excep\u00adtion if eco\u00adnom\u00adic or tech\u00adni\u00adcal rea\u00adsons so require, Sec\u00adtion 97 para. 4 P. 3 GWB. How\u00adev\u00ader, the pro\u00advi\u00adsion does not stip\u00adu\u00adlate that an over\u00adall award may only be made if there is an objec\u00adtive\u00adly com\u00adpelling rea\u00adson. How\u00adev\u00ader, in the case of an intend\u00aded over\u00adall award, the con\u00adtract\u00ading author\u00adi\u00adty has to deal in a spe\u00adcial way with the basic require\u00adment of a spe\u00adcial\u00adized lot award and the rea\u00adsons speak\u00ading against it in the spe\u00adcif\u00adic case and to car\u00adry out a com\u00adpre\u00adhen\u00adsive weigh\u00ading of the con\u00adflict\u00ading inter\u00adests, as the result of which the tech\u00adni\u00adcal and eco\u00adnom\u00adic rea\u00adsons speak\u00ading in favor of an over\u00adall award must pre\u00advail.
\nNo gen\u00ader\u00adal rules can be estab\u00adlished for the degree of pre\u00addom\u00adi\u00adnance. Nor is the appli\u00adcant, even if it is a medi\u00adum-sized com\u00adpa\u00adny, enti\u00adtled to demand that the respon\u00addent form lots which are suit\u00adable for it and which fit into its bid port\u00adfo\u00adlio (cf. Sen\u00adate, deci\u00adsion of 06.04.2011, 15 Verg 3\/11 \u2014 juris para. 57).<\/p>\n
The review shall be based on the con\u00adsid\u00ader\u00ada\u00adtion doc\u00adu\u00adment\u00aded in the award mem\u00ado\u00adran\u00addum in a time\u00adly man\u00adner.
\nThe coor\u00addi\u00adna\u00adtion effort result\u00ading from a lot award as well as the risks aris\u00ading at inter\u00adfaces are to be includ\u00aded in the deci\u00adsion as eco\u00adnom\u00adic aspects. Tech\u00adni\u00adcal rea\u00adsons are those that make it nec\u00ades\u00adsary to inte\u00adgrate all ser\u00advice steps in one hand in order to achieve the lev\u00adel of qual\u00adi\u00adty aimed for by the client. How\u00adev\u00ader, the ten\u00adder\u00ading, inspec\u00adtion and coor\u00addi\u00adna\u00adtion costs gen\u00ader\u00adal\u00adly asso\u00adci\u00adat\u00aded with the award of spe\u00adcial\u00adist lots, as well as high\u00ader war\u00adran\u00adty costs, can\u00adnot in them\u00adselves jus\u00adti\u00adfy an over\u00adall award, because these are addi\u00adtion\u00adal costs inher\u00adent in the award of lots and typ\u00adi\u00adcal\u00adly asso\u00adci\u00adat\u00aded with them, which must gen\u00ader\u00adal\u00adly be accept\u00aded in accor\u00addance with the pur\u00adpose of the law.<\/p>\n
Con\u00adtrary to the opin\u00adion of the Pro\u00adcure\u00adment Cham\u00adber, it is not nec\u00ades\u00adsary for a prop\u00ader weigh\u00ading to set out in writ\u00ading a com\u00adpar\u00adi\u00adson of the pos\u00adi\u00adtive effects of an over\u00adall award and its neg\u00ada\u00adtive effects in the award notice. This over\u00adstretch\u00ades the require\u00adments for doc\u00adu\u00admen\u00adta\u00adtion.<\/p>\n
The respon\u00addent has com\u00adpre\u00adhen\u00adsi\u00adbly tak\u00aden as a basis that, due to the com\u00adplex\u00adi\u00adty of the respec\u00adtive sup\u00adport and imple\u00admen\u00adta\u00adtion ser\u00advices and the host\u00ading effort asso\u00adci\u00adat\u00aded with data cen\u00adter oper\u00ada\u00adtion, it is nec\u00ades\u00adsary to ensure the most uni\u00adform pos\u00adsi\u00adble oper\u00adat\u00ading and sys\u00adtem archi\u00adtec\u00adture, in par\u00adtic\u00adu\u00adlar also against the back\u00adground of the legal adjust\u00adments required due to fre\u00adquent changes in the law. It is obvi\u00adous that this is bet\u00adter ensured when award\u00ading the con\u00adtract to one provider, even if the soft\u00adware for the spe\u00adcial\u00adist appli\u00adca\u00adtions in social ser\u00advices and youth wel\u00adfare should have dif\u00adfer\u00adent sys\u00adtem archi\u00adtec\u00adtures, as the appli\u00adcant claims. It is also under\u00adstand\u00adable that the flex\u00adi\u00adble deploy\u00adment of employ\u00adees with\u00adin the munic\u00adi\u00adpal\u00adi\u00adties is facil\u00adi\u00adtat\u00aded by iden\u00adti\u00adcal or near\u00adly iden\u00adti\u00adcal sys\u00adtem archi\u00adtec\u00adtures and oper\u00adat\u00ading pro\u00adce\u00addures, and that this speaks in favor of an over\u00adall con\u00adtract award. The require\u00adment of a uni\u00adform oper\u00adat\u00ading log\u00adic was not raised by the respon\u00addent for the first time in the award review pro\u00adceed\u00adings. Already in the award notice it was exem\u00adplar\u00adi\u00adly shown at a pro\u00adcure\u00adment need of the dis\u00adtrict \u2026 that the cus\u00adtomer expects a uni\u00adform ser\u00advice. The respon\u00addent only elab\u00ado\u00adrat\u00aded on this argu\u00adment in the review pro\u00adceed\u00adings.<\/p>\n
The sig\u00adnif\u00adi\u00adcant finan\u00adcial bur\u00addens cit\u00aded by the respon\u00addent also jus\u00adti\u00adfy the over\u00adall award. An eco\u00adnom\u00adic rea\u00adson for the over\u00adall award is that the addi\u00adtion\u00adal costs lead to a sig\u00adnif\u00adi\u00adcant increase in the cost of the ser\u00advice to its cus\u00adtomers. What is required is a project-relat\u00aded increase in cost; gen\u00ader\u00adal eco\u00adnom\u00adic con\u00adsid\u00ader\u00ada\u00adtions and strate\u00adgic ori\u00aden\u00adta\u00adtion, on the oth\u00ader hand, are not enough. The respon\u00addent has tak\u00aden this into account. The rough cal\u00adcu\u00adla\u00adtions pro\u00advide a viable basis for the Respon\u00adden\u00adt\u2019s pre\u00addic\u00adtion that the over\u00adall award will result in sig\u00adnif\u00adi\u00adcant cost sav\u00adings com\u00adpared to a lot award. In this way, the respon\u00addent takes into account the over\u00adall objec\u00adtive of pro\u00adcure\u00adment law to pro\u00adcure eco\u00adnom\u00adi\u00adcal\u00adly. For eco\u00adnom\u00adic and tech\u00adni\u00adcal rea\u00adsons, the ser\u00advice must not be frag\u00adment\u00aded to such an extent that a uni\u00adform over\u00adall ser\u00advice can only be pro\u00advid\u00aded with dis\u00adpro\u00adpor\u00adtion\u00adate effort.<\/strong><\/p>\n OLG Karl\u00adsruhe (award\u00ading sen\u00adate), deci\u00adsion of 29.04.2022 \u2014 15 Verg 2\/22 (over\u00adrul\u00ading the above-men\u00adtioned deci\u00adsion of the VK Baden-W\u00fcrt\u00adtem\u00adberg)<\/strong><\/p>\n Entry 04 (IT spe\u00adcial\u00adist ser\u00advice)<\/strong><\/p>\n Case law: Inter\u00adpre\u00adta\u00adtion of the spec\u00adi\u00adfi\u00adca\u00adtions in the IT con\u00adtext, exclu\u00adsion of a bid\u00adder due to changes to the ten\u00adder doc\u00adu\u00adments<\/strong><\/p>\n Exclu\u00adsion of a bid due to changes or addi\u00adtions to the ten\u00adder doc\u00adu\u00adments pur\u00adsuant to Sec\u00adtion 57 para. 1 No. 4 ARC may also be jus\u00adti\u00adfied if, accord\u00ading to the under\u00adstand\u00ading of an infor\u00adma\u00adtion tech\u00adnol\u00ado\u00adgy layper\u00adson, a bid was sub\u00admit\u00adted which cor\u00adre\u00adsponds to the spec\u00adi\u00adfi\u00adca\u00adtions. The deci\u00adsive fac\u00adtor for deter\u00admin\u00ading whether an amend\u00adment or sup\u00adple\u00adment is present is the objec\u00adtive recip\u00adi\u00aden\u00adt\u2019s hori\u00adzon of a poten\u00adtial bid\u00adder from the addressed group of bid\u00adders of the respec\u00adtive invi\u00adta\u00adtion to ten\u00adder.<\/strong> OLG Karl\u00adsruhe (award\u00ading sen\u00adate), deci\u00adsion of 29.04.2022 \u2014 15 Verg 2\/22 (over\u00adrul\u00ading the above-men\u00adtioned deci\u00adsion of the VK Baden-W\u00fcrt\u00adtem\u00adberg)<\/span><\/strong><\/p>\n","protected":false},"featured_media":0,"template":"","fachdienst_kategorien":[276],"class_list":["post-16417","fachdienst","type-fachdienst","status-publish","hentry","fachdienst_kategorien-it-specialist-service"],"acf":[],"_links":{"self":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/fachdienst\/16417","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/fachdienst"}],"about":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/types\/fachdienst"}],"wp:attachment":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/media?parent=16417"}],"wp:term":[{"taxonomy":"fachdienst_kategorien","embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/fachdienst_kategorien?post=16417"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nThe descrip\u00adtion of the respec\u00adtive intend\u00aded use can there\u00adfore be inter\u00adpret\u00aded in accor\u00addance with Sec\u00adtions 133 and 157 of the Ger\u00adman Civ\u00adil Code to mean that prod\u00aducts must nec\u00ades\u00adsar\u00adi\u00adly have cer\u00adtain func\u00adtion\u00adal\u00adi\u00adties, even if these are not explic\u00adit\u00adly list\u00aded in the per\u00adfor\u00admance descrip\u00adtion.<\/strong>
\nIt is true that the per\u00adfor\u00admance descrip\u00adtion must be as clear as pos\u00adsi\u00adble, \u00a7 121 para. 1 sen\u00adtence 1 GWB. How\u00adev\u00ader, this does not mean that the per\u00adfor\u00admance spec\u00adi\u00adfi\u00adca\u00adtion must nec\u00ades\u00adsar\u00adi\u00adly be designed in such a way that it con\u00adtains only one pos\u00adsi\u00adble inter\u00adpre\u00adta\u00adtion, tak\u00ading into account all log\u00adi\u00adcal pos\u00adsi\u00adbil\u00adi\u00adties. Even if a ser\u00advice descrip\u00adtion is care\u00adful\u00adly pre\u00adpared, it can\u00adnot be ruled out that minor ambi\u00adgu\u00adi\u00adties may occur. The lim\u00adit to a lack of unam\u00adbi\u00adgu\u00adi\u00adty is only exceed\u00aded if sev\u00ader\u00adal pos\u00adsi\u00adble inter\u00adpre\u00adta\u00adtions remain even after efforts at inter\u00adpre\u00adta\u00adtion by expert com\u00adpa\u00adnies.<\/strong>
\nIf the cus\u00adtomer spec\u00adi\u00adfies that servers are to be pro\u00adcured for a high-per\u00adfor\u00admance het\u00adero\u00adge\u00adneous com\u00adput\u00ading clus\u00adter for AI appli\u00adca\u00adtions, the spec\u00adi\u00adfi\u00adca\u00adtions must be inter\u00adpret\u00aded in this con\u00adtext.<\/strong>
\nExclu\u00adsion of a bid\u00adder is there\u00adfore jus\u00adti\u00adfied if the bid\u00adder offers ser\u00advices that do not fit the require\u00adments pro\u00adfile of the invi\u00adta\u00adtion to ten\u00adder. This also applies if, from the point of view of an IT lay\u00adman, the offer cor\u00adre\u00adsponds to the spec\u00adi\u00adfi\u00adca\u00adtions, since the objec\u00adtive cri\u00adte\u00adria of the spec\u00adi\u00adfi\u00adca\u00adtions for the goods in them\u00adselves are ful\u00adfilled. How\u00adev\u00ader, if it is clear to an expert bid\u00adder from the IT sec\u00adtor that the goods are not suit\u00adable for the assumed pur\u00adpose from the out\u00adset (in this case, due to the inabil\u00adi\u00adty to arrange and inter\u00adcon\u00adnect more than two GPUs), it can be exclud\u00aded with bids that do not meet the per\u00adfor\u00admance cri\u00adte\u00adria.<\/strong><\/p>\n