All questions

The bidding process

i Notice

Above the EU thresholds, all calls for competition in Germany have to be transmitted via electronic standard forms to the Publications Office of the European Union, which publishes the notices in the online version of the supplement of the OJEU, the platform 'Tenders Electronic Daily' (TED). The notice may not be published at the national level before it has been published by the Publications Office of the European Union or 48 hours after confirmation of the receipt of the notice. Apart from essential data on the contracting authority and the subject matter of the contract (including CPV-codes for the goods, services and works), in particular all eligibility criteria and their respective proof requirements have to be published in the notice. The notice must also include a link by which the procurement documents can be retrieved for free. While case law used to be very strict to include all eligibility criteria explicitly in the notice itself, more recent decisions allow contracting authorities to make a precise reference in the notice to the eligibility criteria in the online procurement documents, and to only provide certain parts of the procurement documents at publishing of the notice in a two-stage or multistage procedure. The mere intention to tender a public contract in the future can be published through an indicative notice, which decreases the minimum time frames for a subsequent tender. The award of a contract has to be published within 30 days of the award of the contract; and within 48 days for the award of concessions and in the area of defence and security. The notice has to include the name of the successful tenderer. A notice on TED is also required for certain exempt contracts. Apart from such explicit requirements, a transparency notice may be required in light of fundamental EU principles (not necessarily, but certainly sufficient in TED). Below the EU thresholds, public notices of the tender in adequate federal, state, regional or local publications are common. Irrespective thereof, any notice subject to UVgO must be available online and via the federal platform www.bund.de.

ii Procedures

The procurement laws generally provide for open, restricted and negotiated procedures (with or without a call for competition) as well as competitive dialogues and innovation partnerships. Any interested party is invited to submit a bid in an open procedure. Tenderers first have to submit a request for participation (RfP) in a restricted or a negotiated procedure. Contracting authorities typically limit the number of tenderers for the bidding phase of such procedures based on evaluation of the eligibility of the RfPs. Different from an open or restricted procedure, a negotiated procedure allows for negotiation of the (initial) bids, provided that the substance of the tender is not modified. Competitive dialogues are rarely used in Germany. Innovation partnerships are still fairly new, but certainly an interesting option for contracting authorities and contractors. Contracting authorities are generally free to choose an open or restricted procedure. A negotiated procedure is only available under limited circumstances, for example, if the procurement needs cannot be met by readily available solutions without adaption or if the contract includes innovative solutions. Under the Utilities Ordinance, contracting entities are free to choose any procedures with a call for competition. Under the Security and Defence Procurement Ordinance, the open procedure is not available. The procedures for tenders below the EU thresholds are similar to the procedures at or above the EU thresholds, but provide more flexibility.

iii Amending bids

Before the end of the submission deadline, tenderers can typically withdraw their bid and also submit a new bid instead. Once the submission deadline expired, amendments to bids are not permissible and tenderers may only clarify their bids upon the contracting authority's request, unless the applied procurement procedure allows for negotiations (see Section II). The contracting authority may subsequently request missing or incomplete information. Such information may not change the application or bid. The contracting authority has to further evaluate the pricing and underlying calculation if the price of the tender appears unusually low. Amendments of or additions to the contracting authority's procurement documents by the tenderers are inadmissible. They qualify as mandatory ground for exclusion, if the procurement documents were clear and if they cannot be interpreted in a way that is in conformity with the procurement documents. The contracting authority may, however, explicitly permit variants if it sets up minimum requirements for the variants and the award criteria apply to both the main tender and the variants.