A per\u00adson who does not agree to an exten\u00adsion of the bind\u00ading peri\u00adod sug\u00adgest\u00aded by the client does not there\u00adby declare that he is not (any longer) inter\u00adest\u00aded in the order.<\/p>\n
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An exclu\u00adsion of the offer based on this lacks a legal basis.<\/p>\n
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The invi\u00adta\u00adtion to ten\u00adder was for the sup\u00adply of mate\u00adri\u00adals and logis\u00adtics for broad\u00adband expan\u00adsion. The bind\u00ading dead\u00adline for bids was July 30, 2019. The respon\u00addent request\u00aded an exten\u00adsion of the bind\u00ading dead\u00adline until Sep\u00adtem\u00adber 22, 2019. The appli\u00adcant did not declare an exten\u00adsion of the bind\u00ading dead\u00adline. The Respon\u00addent exclud\u00aded the Respon\u00adden\u00adt\u2019s bid, cit\u00ading the fail\u00adure to send con\u00adfir\u00adma\u00adtion of the exten\u00adsion of the bind\u00ading peri\u00adod. The appli\u00adcan\u00adt\u2019s com\u00adplaint was not upheld. The request for review was reject\u00aded by the Pro\u00adcure\u00adment Cham\u00adber with ref\u00ader\u00adence to Sec\u00adtion 57 (1) No. 2 VgV. The bid of the appli\u00adcant had lapsed in accor\u00addance with \u00a7\u00a7 146, 148 BGB with\u00adout the exten\u00adsion of the bind\u00ading peri\u00adod. The imme\u00addi\u00adate appeal is direct\u00aded against this. <\/p>\n
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The appeal was suc\u00adcess\u00adful. The exclu\u00adsion of the bid was unlaw\u00adful for lack of a legal basis. The expiry of a bid under civ\u00adil law does not mean that the bid is also invalid under pro\u00adcure\u00adment law. It may even be nec\u00ades\u00adsary to con\u00adsid\u00ader the appli\u00adcan\u00adt\u2019s bid for bud\u00adgetary rea\u00adsons. <\/p>\n
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The VK wrong\u00adly based the exclu\u00adsion on Sec\u00adtion 57 (1) No. 2 VgV. Accord\u00ading to this stan\u00addard, which does not grant the respon\u00addent any dis\u00adcre\u00adtion, bids are to be exclud\u00aded which do not con\u00adtain the required doc\u00adu\u00adments or the doc\u00adu\u00adments which were per\u00admis\u00adsi\u00adbly sub\u00adse\u00adquent\u00adly request\u00aded pur\u00adsuant to Sec\u00adtion 56 VgV. Dec\u00adla\u00adra\u00adtions on the exten\u00adsion of the bind\u00ading peri\u00adod do not con\u00adsti\u00adtute doc\u00adu\u00adments pur\u00adsuant to Sec\u00adtion 57 (1), Sec\u00adtion 48 (1) VgV. <\/p>\n
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The term \u201cdoc\u00adu\u00adments\u201d is lim\u00adit\u00aded to com\u00adpa\u00adny-relat\u00aded or per\u00adfor\u00admance-relat\u00aded doc\u00adu\u00adments. An exten\u00adsion of the reten\u00adtion peri\u00adod can\u00adnot be assigned to either of the two groups. The exclu\u00adsion cri\u00adte\u00adria can\u00adnot be applied by anal\u00ado\u00adgy. These are con\u00adclu\u00adsive and may not be inter\u00adpret\u00aded in a broad\u00ader way. <\/p>\n
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An award deci\u00adsion made by the respon\u00addent after the expi\u00adra\u00adtion of the bind\u00ading peri\u00adod shall con\u00adsti\u00adtute a new offer which, if appro\u00adpri\u00adate\u00adly word\u00aded, may be accept\u00aded on the terms of the orig\u00adi\u00adnal offer.<\/p>\n
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In a con\u00adstruc\u00adtion con\u00adtract pro\u00adcure\u00adment case, the deci\u00adsion would hard\u00adly be worth men\u00adtion\u00ading. The VOB\/A explic\u00adit\u00adly reg\u00adu\u00adlates the case of a late bid; exclu\u00adsion if the bid\u00adder sim\u00adply does not extend the com\u00admit\u00adment is usu\u00adal\u00adly out of the ques\u00adtion. The sit\u00adu\u00ada\u00adtion is dif\u00adfer\u00adent in VgV cas\u00ades. Here, there is by no means such a clear dis\u00adtinc\u00adtion between con\u00adtract and pro\u00adcure\u00adment law con\u00adsid\u00ader\u00ada\u00adtions. How\u00adev\u00ader, bid\u00adders should not blind\u00adly rely on this case law. In par\u00adtic\u00adu\u00adlar, they must care\u00adful\u00adly check the award doc\u00adu\u00adments to see whether they pro\u00advide for the exclu\u00adsion of time-lim\u00adit\u00aded bids. <\/p>\n
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Before declar\u00ading an exten\u00adsion of the bind\u00ading peri\u00adod, it must always be checked how \u201cgreat\u201d the inter\u00adest in an award is (still), in par\u00adtic\u00adu\u00adlar whether the bid\u00adder would also sub\u00admit a bid at the cur\u00adrent time under unchanged con\u00addi\u00adtions. By sub\u00admit\u00adting the exten\u00adsion of the bind\u00ading time lim\u00adit, the bid\u00adder is bound to its bid until the expiry of the time lim\u00adit. In addi\u00adtion, cau\u00adtion: A change to the new bind\u00ading peri\u00adod spec\u00adi\u00adfied by the con\u00adtract\u00ading author\u00adi\u00adty \u2014 regard\u00adless of whether it is short\u00adened or extend\u00aded \u2014 can lead to the exclu\u00adsion of the bid as a change to the award doc\u00adu\u00adments. <\/p>\n
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