Freitag, 01.03.2013
District Court of Rhineland-Palatinate: Limit to changing the subject of the procurement
from
Oliver WeihrauchLawyer
Specialist lawyer for public procurement law
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The situation
The client invites tenders for the execution of "earthworks and road construction" in an open Europe-wide procedure. According to the tender documents, alternative tenders are permitted, but according to the tender notice, they are excluded. Several bidders, including the three best-placed bidders, submit alternative tenders that include the installation of recycled material as a hydraulically bound base layer in the road body, resulting in cost savings of between €2,500.00 and 95,000.00 euros and 115,000.00 euros. The award criterion is price, which accounts for 90% of the total. The bid of the runner-up differs from the total of the winning bid by approximately 40,000.00 euros. The contracting authority cancels the tender and justifies this, among other things, with the necessity of fundamental changes to the tender documents, which, as the official proposal, should now provide for the use of recycled material as a hydraulically bound base layer in the road structure. The review procedure of the second-placed bidder is directed against this.
Decision
The public procurement tribunal considers the application for annulment of the annulment decision and return of the proceedings to the state prior to the annulment to be unfounded. It is true that the contracting authority cannot base its annulment decision on a lawful reason for annulment under § 17 VOB/A. However, the unlawful termination is still valid under procurement law. This is because it is not arbitrary, but based on a reasonable factual reason. The contracting authority's right of determination enables it to procure the "best" procurement item. The contracting authority wishes to redefine its procurement requirements. The existing contractual option of changing the procurement item by order according to § 1 No. 3 VOB/B would violate the principle of fair competition under procurement law, as well as the principles of transparency and equal treatment. In the tendering procedure, alternative offers were made in accordance with the tender documents, which were, however, inadmissible after the award notice. In the event of such a contradiction, the provisions of the tender notice apply, since these are also regularly the basis for a candidate's decision to participate in the competition. If the contracting authority were to conclude a contract in full knowledge of the facts, and then to make use of its right to issue instructions and to adjust the remuneration as a result, this would ultimately result in the contract being awarded on the basis of an unauthorized variant that would be in violation of procurement law. Changes to the subject matter of the procurement that are determined before the contract is concluded are only harmless under procurement law if no significant distortion of the outcome of the competition is possible. A significant distortion is always possible if the order of the bidders changes and there is a prospect that another company would have to be awarded the contract.
Practical tip
The decision appropriately limits the contracting authority's scope for making changes during an ongoing tender procedure. Not only the identity of the procurement object must be preserved. The effects on the possible participation of other companies and possible effects on the bidding order must also be taken into account.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.