The financing of voluntary municipal services constantly poses new challenges for treasurers who want to tap into atypical sources of income. For example, consideration is often given to linking the award of municipal contracts to the fact that the contractor should financially support such voluntary services as a sponsor.
The sense of such transactions may be moot – after all, every bidder will include their sponsorship costs in their calculations. For the treasurer, this can actually only be useful if money is diverted in this way from budget items for mandatory services to voluntary services, which would otherwise not be approvable due to the over-indebtedness of a municipality. However, it remains to be seen whether such sponsoring is even permissible under budgetary law when the question of implementation under public procurement law is examined.
Most sponsorship guidelines contain formulations such as the one quoted here from the Bavarian guidelines: “Sponsorship is excluded if the appearance could arise that administrative action would be influenced by the sponsorship. Such an appearance exists in particular in the case of sponsorship (…) in direct connection with the award of public contracts.” (Bavarian Sponsorship Directive, Ref.: B II-G24/10)
The fact that a bidder cannot be requested to provide a sponsorship service in order to be given preference in the award competition does not need to be explained in detail. But what about a construction in which the sponsorship service is declared a special contract condition for the successful bidder by virtue of the award documents and thus becomes part of the service contract – for example in such a way that a supplier of goods must undertake to financially support a cultural institution close to the city to a well-defined extent?
The concept of immediacy seems unquestionably fulfilled here. However, there does not appear to be a “connection”. This is because the logical prerequisite for the “connection” is that they are different objects. However, if the sponsorship becomes an integral part of the tendered service, the characteristic of two different objects is lacking. One and the same thing cannot be related to itself.
The purpose of the sponsorship guidelines is fundamentally to prevent corruption. The aim is therefore to prevent bidders from gaining a corrupt advantage through sponsorship and thus influencing the award decision. By including the sponsorship service in the published award conditions, this is prevented. By choosing this construction, sponsorship does not influence administrative action.
Administrations wishing to generate sponsoring partners by awarding contracts in a manner permitted under budgetary law are therefore recommended to include this connection in the tender documents in an appropriate and official manner.
