All the questions
The bidding process
Above EU thresholds, tenders in Germany must be submitted via electronic standard forms to the Publications Office of the European Union, which publishes the notices on the online platform Tenders Electronic Daily ( TED). The notice may only be published nationally after it has been published by the Publications Office or after 48 hours have elapsed since the Publications Office confirmed receipt of the notice. In addition to the essential data on the contracting authority and the subject of the contract (including the CPV codes for goods, services and works), all the eligibility criteria and the requirements to prove compliance with each of them must be indicated. in the notice. . The notice must also include a link to where procurement documents can be retrieved free of charge. Whereas the case law was previously very strict as regards the explicit inclusion of all the eligibility criteria in the notice itself, more recent decisions allow contracting authorities to mention specifically in the notice that the eligibility criteria can be found in online market documents. Recent case law has also allowed only certain parts of the procurement documents to be provided when the notice is published in a two-step or multi-step procedure.31
The mere intention to bid on a public contract in the future can be published by means of an indicative notice, which reduces the minimum time limits for a subsequent bid.
A TED notice is also required for certain exempt contracts. In addition to such explicit requirements, a notice may be required to ensure transparency in light of fundamental EU principles. In this case, publication on TED is not necessary, but certainly sufficient to adhere to these principles.
The award of a contract must be published within 30 days; this period is extended to 48 days for the awarding of concessions and public defense and security contracts. The notice of award must mention the name of the successful tenderer.
Below the EU thresholds, public tender notices in adequate federal, state, regional, or local publications are common. Nevertheless, any notice submitted to the UVgO must be available online and on the federal platform www.bund.de.
Public procurement laws generally provide for open, restricted and negotiated procedures (with or without competition) as well as competitive dialogues and innovation partnerships.32 Any interested party is invited to submit its offer within the framework of an open procedure. In a restricted or negotiated procedure, tenderers must first submit a request to participate (RfP). Contracting authorities will generally limit the number of bidders to participate in the tender phase based on an assessment of their eligibility in accordance with their tenders. In negotiated procedures, (initial) tenders can be negotiated provided that the content of the public tender is not changed. Competitive dialogues are rarely used in Germany. Innovation partnerships are still relatively new, but certainly an interesting option.
Contracting authorities are generally free to choose an open or restricted procedure. A negotiated procedure is only an option in certain circumstances, for example if the supply needs cannot be met by readily available solutions without adaptation or if the contract includes innovative solutions.
Under the SektVO, contracting entities are free to choose all procedures with competitive bidding. However, for public procurement covered by the VSVgV, the open procedure cannot be used.
Tendering procedures below the EU thresholds are similar to procedures at or above the EU thresholds, but offer more flexibility.
iii Modification of offers
Before the submission deadline, bidders can usually withdraw their bid and submit a completely new bid. Once the submission deadline has expired, modifications are no longer permitted and bidders may only provide details of their bids at the request of the contracting authority. This does not apply if the procurement procedure that the contracting authority has chosen allows for negotiations (see section V.ii). A contracting authority may also ask a tenderer to provide missing information or to rectify incomplete information. This information should not modify the application or the offer.33 The contracting authority should further assess the price of a bid and the underlying calculation if it appears abnormally low. This was defined as a price that falls below the next lowest price by 10% or more. Contracting authorities can also investigate a price if the tender gives a concrete reason for a price verification.34
Bidders are not permitted to modify or amend any contracting authority’s procurement documents. Such action is considered grounds for mandatory exclusion if the contract documents were clear and the changes or additions cannot be interpreted in a manner consistent with the contract documents. For reasons of proportionality, refraining from excluding a tenderer may be justified in rare cases if the modification relates to a purely marginal aspect which is not relevant for the evaluation of the tenders and which might not even be significant. in the performance of the contract.35 The contracting authority may explicitly authorize variants if it establishes minimum requirements for the variants and if the award criteria apply to both the main offer and the variants. The contracting authority is free to determine the minimum requirements for the variants, provided that they are objective, transparent and non-discriminatory.36