The Fed\u00ader\u00adal Court of Jus\u00adtice (rul\u00ading of June 3, 2020, Ref.: XIII ZR 22\/19) has tak\u00aden a clear posi\u00adtion: Any\u00adone who is exclud\u00aded from pro\u00adcure\u00adment pro\u00adce\u00addures has legal pro\u00adtec\u00adtion. Regard\u00adless of whether the exclu\u00adsion is ordered in a spe\u00adcif\u00adic pro\u00adcure\u00adment pro\u00adce\u00addure or applies gen\u00ader\u00adal\u00adly and for the future. The sec\u00adond impor\u00adtant point is that in the event of con\u00adflicts of inter\u00adest, the con\u00adtract\u00ading author\u00adi\u00adty should put its own house in order first. <\/p>\n
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A Berlin case. The plain\u00adtiff is a reg\u00adis\u00adtered asso\u00adci\u00ada\u00adtion that con\u00adducts eco\u00adlog\u00adi\u00adcal stud\u00adies and pre\u00adpares sci\u00aden\u00adtif\u00adic reports. An employ\u00adee of this asso\u00adci\u00ada\u00adtion is mar\u00adried to a par\u00adtic\u00adu\u00adlar\u00adly high-rank\u00ading employ\u00adee of the client and defen\u00addant, name\u00adly the Sen\u00ada\u00adtor for Envi\u00adron\u00adment, Trans\u00adport and Cli\u00admate Pro\u00adtec\u00adtion. The State Sec\u00adre\u00adtary of the Sen\u00adate Depart\u00adment for the Envi\u00adron\u00adment, Trans\u00adport and Cli\u00admate Pro\u00adtec\u00adtion, so to speak the num\u00adber 2, now issued a fate\u00adful direc\u00adtive. By e\u2011mail, he instruct\u00aded the depart\u00adment heads to no longer com\u00admis\u00adsion the asso\u00adci\u00ada\u00adtion in order to avoid a con\u00adflict of inter\u00adest and to exclude offers from the asso\u00adci\u00ada\u00adtion as unsuit\u00adable. <\/p>\n
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The asso\u00adci\u00ada\u00adtion did not put up with this and sued to have the ban on pro\u00adcure\u00adment lift\u00aded. After the dis\u00adtrict court upheld the action, the Court of Appeal issued a strange sen\u00adtence. \u2026<\/p>\n
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The Fed\u00ader\u00adal Court of Jus\u00adtice\u2019s core state\u00adment No. 1, which was per\u00adhaps delib\u00ader\u00adate\u00adly pro\u00advoked by the Court of Appeal, is as fol\u00adlows: There is legal pro\u00adtec\u00adtion against blocks on the award of con\u00adtracts, even if they are imposed out\u00adside con\u00adcrete award pro\u00adce\u00addures, i.e. as it were in the abstract for the future. The bid\u00adder con\u00adcerned can bring an action in civ\u00adil court to have such blocks lift\u00aded. This key state\u00adment is impor\u00adtant. This is because blocked bid\u00adders very often do not even learn about small\u00ader award pro\u00adce\u00addures. They are removed from the list of bid\u00adders and no longer called. So how are they sup\u00adposed to seek legal pro\u00adtec\u00adtion in a spe\u00adcif\u00adic pro\u00adcure\u00adment pro\u00adce\u00addure that is cur\u00adrent\u00adly ongo\u00ading? This is not pos\u00adsi\u00adble, and the Fed\u00ader\u00adal Court of Jus\u00adtice has also rec\u00adog\u00adnized this. This means for all com\u00adpa\u00adnies affect\u00aded by pub\u00adlic pro\u00adcure\u00adment blocks: They do not have to wait until they pos\u00adsi\u00adbly learn of an award or par\u00adtic\u00adi\u00adpate in an award on the off chance and then take action against the exclu\u00adsion deci\u00adsion. Instead, they can sim\u00adply sue to have the award block lift\u00aded if they are of the jus\u00adti\u00adfied opin\u00adion that the award block is unlaw\u00adful. For all con\u00adtract\u00ading author\u00adi\u00adties, this means: Be care\u00adful with the out\u00adward\u00adly announced state\u00adment that a bid\u00adder is no longer to be involved in the future. The lack of a time lim\u00adit for such a block, and pos\u00adsi\u00adbly also the lack of a restric\u00adtion in terms of con\u00adtent, means that legal action must be expect\u00aded. You should there\u00adfore think care\u00adful\u00adly about whether and how you bar a com\u00adpa\u00adny from par\u00adtic\u00adi\u00adpat\u00ading in pro\u00adcure\u00adment pro\u00adce\u00addures. <\/p>\n
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A sig\u00adnif\u00adi\u00adcant rea\u00adson for exclu\u00adsion for all prac\u00adti\u00adcal pur\u00adpos\u00ades is the con\u00adflict of inter\u00adest of per\u00adsons involved in the award\u00ading of con\u00adtracts. Here, a sim\u00adple ques\u00adtion arose: Does the sen\u00ada\u00adtor real\u00adly have any\u00adthing to do with award\u00ading rather insignif\u00adi\u00adcant con\u00adtracts to an asso\u00adci\u00ada\u00adtion in which her hus\u00adband works \u2014 pos\u00adsi\u00adbly also in a com\u00adplete\u00adly dif\u00adfer\u00adent field? <\/p>\n
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The legal hitch is Sec\u00adtion 124 (1) No. 5 GWB. Accord\u00ading to this, the con\u00adtract\u00ading author\u00adi\u00adty can exclude a com\u00adpa\u00adny from the award if there is a con\u00adflict of inter\u00adest in the imple\u00admen\u00adta\u00adtion of the award pro\u00adce\u00addure which can\u00adnot be elim\u00adi\u00adnat\u00aded by oth\u00ader, less dras\u00adtic mea\u00adsures. Accord\u00ading to the Fed\u00ader\u00adal Court of Jus\u00adtice, this pro\u00advi\u00adsion must also apply out\u00adside of spe\u00adcif\u00adic award pro\u00adce\u00addures. It can be added that many fed\u00ader\u00adal states have also issued cor\u00adre\u00adspond\u00ading reg\u00adu\u00adla\u00adtions for the area \u201cbelow the EU thresh\u00adolds\u201d. I.e., the prin\u00adci\u00adple is gen\u00ader\u00adal\u00adiz\u00adable. Any\u00adone with a con\u00adflict of inter\u00adest may not par\u00adtic\u00adi\u00adpate unless the con\u00adflict of inter\u00adest can be elim\u00adi\u00adnat\u00aded by oth\u00ader, less dras\u00adtic mea\u00adsures. <\/p>\n
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The deci\u00adsive ques\u00adtion here was whether a con\u00adflict of inter\u00adest already exist\u00aded if one spouse had some\u00adthing to say at the con\u00adtract\u00ading author\u00adi\u00adty while the oth\u00ader worked in a bid\u00adding com\u00adpa\u00adny. The law is tough on this point. Pur\u00adsuant to Sec\u00adtion 6 (4) in con\u00adjunc\u00adtion with (3) No. 3a VgV, it is pre\u00adsumed that the con\u00adtract\u00ading author\u00adi\u00adty employ\u00adee in ques\u00adtion has a con\u00adflict of inter\u00adest if his or her spouse is employed for remu\u00adner\u00ada\u00adtion by a can\u00addi\u00addate or bid\u00adder. <\/p>\n
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But does that lead to manda\u00adto\u00adry exclu\u00adsion? The ulti\u00adma ratio in such cas\u00ades is to exclude the appli\u00adcant or bid\u00adder. But only if the con\u00adflict of inter\u00adest can\u00adnot be resolved in any oth\u00ader way. It is pre\u00adcise\u00adly a last resort. In con\u00adtrast, the BGH states that the con\u00adtract\u00ading author\u00adi\u00adty is ini\u00adtial\u00adly required to exclude bod\u00adies or employ\u00adees with a con\u00adflict of inter\u00adest from par\u00adtic\u00adi\u00adpat\u00ading in the award pro\u00adce\u00addure. This must of course, it may be added, also be prop\u00ader\u00adly doc\u00adu\u00adment\u00aded. <\/p>\n
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In the Berlin case, the BGH ruled accord\u00ading\u00adly. The sen\u00adate admin\u00adis\u00adtra\u00adtion should ensure that the sen\u00ada\u00adtor does not par\u00adtic\u00adi\u00adpate in pro\u00adcure\u00adment pro\u00adce\u00addures in which her hus\u00adband\u2019s employ\u00ader will par\u00adtic\u00adi\u00adpate. That was quite suf\u00adfi\u00adcient. Espe\u00adcial\u00adly since the sen\u00ada\u00adtor\u2019s hus\u00adband had no right of direc\u00adtion, let alone per\u00adson\u00adnel man\u00adage\u00adment. <\/p>\n
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Pub\u00adlic-sec\u00adtor clients are famil\u00adiar with the fac\u00adtu\u00adal prob\u00adlem from a wide vari\u00adety of con\u00adtexts. In every local coun\u00adcil, there are mem\u00adbers who do not vote one time or anoth\u00ader because of a con\u00adflict of inter\u00adest. So noth\u00ading new under the sun? Not quite. The prac\u00adtice \u2014 of impos\u00ading a ban on pro\u00adcure\u00adment regard\u00adless of a spe\u00adcif\u00adic award \u2014 has come under fur\u00adther pres\u00adsure. <\/p>\n
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Bid\u00adders can rejoice. They do not have to fear \u201cin-house\u201d injunc\u00adtions. If a bid\u00adder learns that he is on a \u201cblack\u00adlist\u201d of some kind, the mot\u00adto is \u201cattack is the best form of defense\u201d. The Fed\u00ader\u00adal Court of Jus\u00adtice has pushed this door wide open. <\/p>\n
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*This legal tip is not a sub\u00adsti\u00adtute for legal advice in indi\u00advid\u00adual cas\u00ades. By its very nature, it is incom\u00adplete, nor is it spe\u00adcif\u00adic to your case, and it also rep\u00adre\u00adsents a snap\u00adshot in time, as legal prin\u00adci\u00adples and case law change over time. It can\u00adnot and does not cov\u00ader all con\u00adceiv\u00adable con\u00adstel\u00adla\u00adtions, serves enter\u00adtain\u00adment and ini\u00adtial ori\u00aden\u00adta\u00adtion pur\u00adpos\u00ades and is intend\u00aded to moti\u00advate you to clar\u00adi\u00adfy legal issues at an ear\u00adly stage, but not to dis\u00adcour\u00adage you from doing so. <\/span><\/p>\n","protected":false},"excerpt":{"rendered":" The Fed\u00ader\u00adal Court of Jus\u00adtice (rul\u00ading of June 3, 2020, Ref.: XIII ZR 22\/19) has tak\u00aden a clear posi\u00adtion: Any\u00adone who is exclud\u00aded from pro\u00adcure\u00adment pro\u00adce\u00addures has legal pro\u00adtec\u00adtion. Regard\u00adless of whether the exclu\u00adsion is ordered in a spe\u00adcif\u00adic pro\u00adcure\u00adment pro\u00adce\u00addure or applies gen\u00ader\u00adal\u00adly and for the future. The sec\u00adond impor\u00adtant point is that in [\u2026]<\/p>\n","protected":false},"author":4,"featured_media":15911,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"wp_typography_post_enhancements_disabled":false,"footnotes":""},"categories":[248],"tags":[],"team_kategorien":[],"lexikon_kategorie":[207],"class_list":["post-15664","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-jurisdiction","lexikon_kategorie-eu-thresholds-in-the-procurement-procedure"],"acf":[],"_links":{"self":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/posts\/15664","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/comments?post=15664"}],"version-history":[{"count":2,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/posts\/15664\/revisions"}],"predecessor-version":[{"id":15999,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/posts\/15664\/revisions\/15999"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/media\/15911"}],"wp:attachment":[{"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/media?parent=15664"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/categories?post=15664"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/tags?post=15664"},{"taxonomy":"team_kategorien","embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/team_kategorien?post=15664"},{"taxonomy":"lexikon_kategorie","embeddable":true,"href":"https:\/\/abante.de\/en\/wp-json\/wp\/v2\/lexikon_kategorie?post=15664"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}