Dur\u00ading the prepa\u00adra\u00adtion for a pro\u00adcure\u00adment pro\u00adce\u00addure, the con\u00adtract\u00ading author\u00adi\u00adty is rec\u00adom\u00admend\u00aded to con\u00adduct a mar\u00adket analy\u00adsis in order to get a broad overview of the offers avail\u00adable on the mar\u00adket. In this way, a smooth flow of com\u00adpe\u00adti\u00adtion can be achieved and all bid\u00adders are giv\u00aden equal oppor\u00adtu\u00adni\u00adties. It is there\u00adfore impor\u00adtant to pro\u00advide suf\u00adfi\u00adcient rea\u00adsons as to which man\u00adu\u00adfac\u00adtur\u00ader can best imple\u00adment the clien\u00adt\u2019s ideas. Direct award\u00ading of con\u00adtracts plays a major role for some cus\u00adtomers. This involves nego\u00adti\u00adat\u00ading with just one bid\u00adder. How\u00adev\u00ader, this could have seri\u00adous con\u00adse\u00adquences for review bod\u00adies and cause a kind of dis\u00adcrim\u00adi\u00adna\u00adtion against oth\u00ader bid\u00adders. <\/p>\n
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There is no pre\u00adcise spec\u00adi\u00adfi\u00adca\u00adtion of how a mar\u00adket inves\u00adti\u00adga\u00adtion is car\u00adried out. One can say only that one inves\u00adti\u00adgates, col\u00adlects and doc\u00adu\u00adments rel\u00ade\u00advant infor\u00adma\u00adtion for pro\u00adcure\u00adment objects (goods, com\u00admodi\u00adties, ser\u00advices) dur\u00ading a mar\u00adket inves\u00adti\u00adga\u00adtion. Thus the deter\u00admined offers of the exist\u00ading mar\u00adket can be tak\u00aden as a basis for the cal\u00adcu\u00adla\u00adtion of the client, in order to be able to adapt invi\u00adta\u00adtions to ten\u00adder in the best pos\u00adsi\u00adble way to the pro\u00adcure\u00adment desires of the pub\u00adlic clients. <\/p>\n
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In most cas\u00ades, a mar\u00adket inves\u00adti\u00adga\u00adtion is car\u00adried out pri\u00ador to an award pro\u00adce\u00addure. When con\u00adduct\u00ading an award pro\u00adce\u00addure, it must be strict\u00adly observed that it is not only a cost and price deter\u00admi\u00adna\u00adtion for the pur\u00adpose of mar\u00adket recon\u00adnais\u00adsance. Oth\u00ader\u00adwise, its imple\u00admen\u00adta\u00adtion is inad\u00admis\u00adsi\u00adble. <\/p>\n
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In addi\u00adtion, a mar\u00adket inves\u00adti\u00adga\u00adtion must not be con\u00adfused with a pro\u00adcure\u00adment. There\u00adfore, it is essen\u00adtial to clear\u00adly com\u00admu\u00adni\u00adcate the non-bind\u00ading nature of the explo\u00adration from the out\u00adset and to keep doc\u00adu\u00admen\u00adta\u00adtion to back it up dur\u00ading the process. It is impor\u00adtant not to unin\u00adten\u00adtion\u00adal\u00adly cross the thresh\u00adold into a pro\u00adcure\u00adment process. Obtain\u00ading infor\u00adma\u00adtion is not a prob\u00adlem if it does not result in the award of a con\u00adtract or con\u00adcrete nego\u00adti\u00ada\u00adtions. This is to pre\u00advent a com\u00adpet\u00adi\u00adtive advan\u00adtage in favor of a par\u00adtic\u00adu\u00adlar bid\u00adder. <\/p>\n
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In prin\u00adci\u00adple, it is impor\u00adtant for the client to obtain the advan\u00adtages and dis\u00adad\u00advan\u00adtages of var\u00adi\u00adous prod\u00aducts and to com\u00adpare them con\u00adsci\u00aden\u00adtious\u00adly in order to obtain a suit\u00adable offer. This infor\u00adma\u00adtion can be researched by the client on the Inter\u00adnet or request\u00aded direct\u00adly from com\u00adpa\u00adnies. It is impor\u00adtant to seek the advice of inde\u00adpen\u00addent experts, author\u00adi\u00adties, etc., in order to rule out dis\u00adcrim\u00adi\u00adna\u00adtion against bid\u00adders. There are many rea\u00adsons for con\u00adduct\u00ading a mar\u00adket sur\u00advey. <\/p>\n
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Among oth\u00ader things, a mar\u00adket inves\u00adti\u00adga\u00adtion is very use\u00adful for deter\u00admin\u00ading pro\u00adcure\u00adment needs. How exact\u00adly this need is defined always depends on the con\u00adcep\u00adtions of the respec\u00adtive clients them\u00adselves. It is impor\u00adtant for the client to describe the con\u00adtract items in detail and clear\u00adly in order to com\u00adpare the offers of the bid\u00adders with each oth\u00ader in the best pos\u00adsi\u00adble way. <\/p>\n
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Fur\u00adther\u00admore, the mar\u00adket inves\u00adti\u00adga\u00adtion helps in the prepa\u00adra\u00adtion of the ten\u00adder doc\u00adu\u00adments. Not only can it sim\u00adpli\u00adfy the draft\u00ading of a spec\u00adi\u00adfi\u00adca\u00adtion, it can also help to deter\u00admine and define the rel\u00ade\u00advant suit\u00adabil\u00adi\u00adty cri\u00adte\u00adria of the com\u00adpa\u00adnies to be involved in the pro\u00adce\u00addure. <\/p>\n
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Fur\u00adther\u00admore, through the analy\u00adsis of the mar\u00adket, the best price-per\u00adfor\u00admance ratio is to be deter\u00admined. This is achieved by deter\u00admin\u00ading award cri\u00adte\u00adria, such as qual\u00adi\u00adty, price, prof\u00aditabil\u00adi\u00adty, tech\u00adni\u00adcal val\u00adue, etc. <\/p>\n
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Anoth\u00ader rea\u00adson is the con\u00adtract val\u00adue esti\u00admate. This involves deter\u00admin\u00ading whether the con\u00adtract val\u00adue is above the thresh\u00adold val\u00adue (EU pro\u00adcure\u00adment law) or below the thresh\u00adold val\u00adue (nation\u00adal pro\u00adcure\u00adment law). Based on the expect\u00aded total remu\u00adner\u00ada\u00adtion, the con\u00adtract val\u00adue of the ser\u00advices to be pro\u00adcured is esti\u00admat\u00aded. <\/p>\n
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Last but not least, it should be men\u00adtioned that a mar\u00adket inves\u00adti\u00adga\u00adtion is also impor\u00adtant for deter\u00admin\u00ading the right type of award pro\u00adce\u00addure and the pos\u00adsi\u00adble group of can\u00addi\u00addates and\/or bid\u00adders.<\/p>\n
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Whether or not there is an oblig\u00ada\u00adtion to con\u00adduct a mar\u00adket inves\u00adti\u00adga\u00adtion is high\u00adly con\u00adtro\u00adver\u00adsial in case law, par\u00adtic\u00adu\u00adlar\u00adly if the con\u00adtract\u00ading author\u00adi\u00adty wish\u00ades to invite ten\u00adders on a manufacturer\u2011, process- or prod\u00aduct-spe\u00adcif\u00adic basis.<\/p>\n
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On the one hand, the Ros\u00adtock High\u00ader Region\u00adal Court and the D\u00fcs\u00adsel\u00addorf High\u00ader Region\u00adal Court decid\u00aded not to assume any oblig\u00ada\u00adtion to con\u00adduct a mar\u00adket inves\u00adti\u00adga\u00adtion. On the oth\u00ader hand, the Jena High\u00ader Region\u00adal Court, the Celle High\u00ader Region\u00adal Court and the Low\u00ader Sax\u00adony Pro\u00adcure\u00adment Cham\u00adber have decid\u00aded the oppo\u00adsite. They are of the opin\u00adion that it is essen\u00adtial to obtain an overview of the mar\u00adket and final\u00adly to doc\u00adu\u00adment the deci\u00adsion in detail on this basis. <\/p>\n
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The pre\u00advail\u00ading opin\u00adion does not require the con\u00adtract\u00ading author\u00adi\u00adty to con\u00adduct mar\u00adket inves\u00adti\u00adga\u00adtions or mar\u00adket analy\u00adses pri\u00ador to a con\u00adtract spec\u00adi\u00adfi\u00adca\u00adtion with the aim of inves\u00adti\u00adgat\u00ading whether oth\u00ader prod\u00aducts are pos\u00adsi\u00adble or \u201cwhether oth\u00ader \u2014 alter\u00adna\u00adtive \u2014 tech\u00adni\u00adcal approach\u00ades are con\u00adceiv\u00adable\u201d. If, how\u00adev\u00ader, a nego\u00adti\u00adat\u00aded pro\u00adce\u00addure with\u00adout a com\u00adpet\u00adi\u00adtive bid\u00adding process is to be car\u00adried out, stricter require\u00adments must be imposed due to the spe\u00adcial jus\u00adti\u00adfi\u00adca\u00adtion require\u00adments for the choice of this pro\u00adce\u00addure, accord\u00ading to which a mar\u00adket inves\u00adti\u00adga\u00adtion must always be car\u00adried out. In this respect, the effi\u00adcien\u00adcy effects of the free mar\u00adket must be uti\u00adlized in order to have exten\u00adsive knowl\u00adedge of alter\u00adna\u00adtive prod\u00aducts. How\u00adev\u00ader, there may be a nego\u00adti\u00adat\u00aded pro\u00adce\u00addure with\u00adout a com\u00adpet\u00adi\u00adtive bid\u00adding process in which no oblig\u00ada\u00adtion to con\u00adduct a mar\u00adket inves\u00adti\u00adga\u00adtion is required. This occurs in excep\u00adtion\u00adal cir\u00adcum\u00adstances where there are no alter\u00adna\u00adtives with regard to the sub\u00adject mat\u00adter of the pro\u00adcure\u00adment. <\/p>\n
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In prin\u00adci\u00adple, there is no stan\u00addard\u00adized oblig\u00ada\u00adtion for a mar\u00adket inves\u00adti\u00adga\u00adtion, but it should nev\u00ader\u00adthe\u00adless be car\u00adried out and doc\u00adu\u00adment\u00aded in detail pri\u00ador to the ini\u00adti\u00ada\u00adtion of an award pro\u00adce\u00addure.<\/p>\n
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The IBV (Inter\u00adessen\u00adbekun\u00addungsver\u00adfahren or Expres\u00adsion of Inter\u00adest Pro\u00adce\u00addure) has many mean\u00adings, which is why the con\u00adnec\u00adtion to the mar\u00adket inves\u00adti\u00adga\u00adtion must be made clear here. On the one hand, it describes an infor\u00admal pro\u00adce\u00addure for mar\u00adket explo\u00adration, in which con\u00adcept pro\u00adpos\u00adals or solu\u00adtions are pre\u00adsent\u00aded by inter\u00adest\u00aded par\u00adties. Here an instruc\u00adtion is essen\u00adtial, with which it emerges that it con\u00adcerns no pro\u00adcure\u00adment inten\u00adtion, but only a mar\u00adket analy\u00adsis. <\/p>\n
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On the oth\u00ader hand, the IBV means that pub\u00adlic con\u00adtract\u00ading author\u00adi\u00adties con\u00adsid\u00ader hav\u00ading future tasks per\u00adformed by pri\u00advate par\u00adties. There\u00adfore, pri\u00advate providers are giv\u00aden the oppor\u00adtu\u00adni\u00adty to demon\u00adstrate whether and to what extent they can per\u00adform pub\u00adlic tasks or eco\u00adnom\u00adic activ\u00adi\u00adties serv\u00ading pub\u00adlic pur\u00adpos\u00ades as well or bet\u00adter than the pub\u00adlic sec\u00adtor itself. <\/p>\n
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In the case of direct award, nego\u00adti\u00ada\u00adtions are con\u00adduct\u00aded exclu\u00adsive\u00adly with one bid\u00adder, which means that no com\u00adpet\u00adi\u00adtive bid\u00adding process is car\u00adried out. This makes it all the more impor\u00adtant to be able to show good rea\u00adsons for award\u00ading the con\u00adtract. There are indeed some pos\u00adsi\u00adbil\u00adi\u00adties where a direct award is rec\u00adom\u00admend\u00aded or even nec\u00ades\u00adsary. For exam\u00adple, if no suit\u00adable bid is sub\u00admit\u00adted in a pro\u00adce\u00addure or if the require\u00adments of the con\u00adtract\u00ading author\u00adi\u00adty are not met, the con\u00adtract can be award\u00aded by direct award. The same applies to urgent awards, to sup\u00adplies for research and devel\u00adop\u00adment pur\u00adpos\u00ades, and to con\u00adtracts which could lead to dis\u00adpro\u00adpor\u00adtion\u00adate dif\u00adfi\u00adcul\u00adties (e.g. the pur\u00adchase of dif\u00adfer\u00adent tech\u00adni\u00adcal fea\u00adtures). Anoth\u00ader rea\u00adson could arise if only one com\u00adpa\u00adny can ful\u00adfill the order (e.g. unique work of art). <\/p>\n
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As a mat\u00adter of prin\u00adci\u00adple, you should always ensure that there is enough evi\u00addence of the excep\u00adtion\u00adal sit\u00adu\u00ada\u00adtion and detailed doc\u00adu\u00admen\u00adta\u00adtion in the case of a direct award. It is impor\u00adtant to avoid unlaw\u00adful direct awards. How\u00adev\u00ader, if this is the case, claims for dam\u00adages may have to be expect\u00aded. <\/p>\n
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A client is free to decide how to obtain an overview of the mar\u00adket. For exam\u00adple, infor\u00adma\u00adtion can be obtained from com\u00adpa\u00adnies or researched on the Inter\u00adnet. In doing so, it is impor\u00adtant not to vio\u00adlate the prin\u00adci\u00adple of com\u00adpe\u00adti\u00adtion. This is because the prin\u00adci\u00adple of com\u00adpe\u00adti\u00adtion states that a fair mar\u00adket can only exist with equal oppor\u00adtu\u00adni\u00adties and that the pro\u00adcure\u00adment process should be unbi\u00adased and free from dis\u00adtor\u00adtion. If a com\u00adpa\u00adny obtains spe\u00adcial knowl\u00adedge, either inten\u00adtion\u00adal\u00adly or unin\u00adten\u00adtion\u00adal\u00adly, as a result of the mar\u00adket inves\u00adti\u00adga\u00adtion pri\u00ador to the award pro\u00adce\u00addure, appro\u00adpri\u00adate com\u00adpen\u00adsato\u00adry mea\u00adsures must be ini\u00adti\u00adat\u00aded by the con\u00adtract\u00ading author\u00adi\u00adty. There are a num\u00adber of ways to com\u00adpen\u00adsate for these advan\u00adtages. For exam\u00adple, the results and how they were obtained can be dis\u00adclosed to all poten\u00adtial bid\u00adders and the bid dead\u00adline extend\u00aded accord\u00ading\u00adly. Like\u00adwise, the con\u00adtents of the dis\u00adcus\u00adsions between the respec\u00adtive com\u00adpa\u00adnies and the con\u00adtract\u00ading author\u00adi\u00adty should be com\u00adpre\u00adhen\u00adsive\u00adly doc\u00adu\u00adment\u00aded. If this infor\u00adma\u00adtion is dis\u00adclosed in the award pro\u00adce\u00addure, it is no longer pos\u00adsi\u00adble to speak of a com\u00adpa\u00adny hav\u00ading an advan\u00adtage. If all pos\u00adsi\u00adbil\u00adi\u00adties for com\u00adpen\u00adsa\u00adtion fail, the pre\u00adqual\u00adi\u00adfied com\u00adpa\u00adny can be exclud\u00aded from the award pro\u00adce\u00addure as a last resort. <\/p>\n
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