Efforts to increase competition, which have been considerably dampened by the BGH decision of January 7, 2014 (X ZB 15/13), because the requirements for the admission and consideration of secondary bids are in part very strict, but in part also subject to legal uncertainties, are now taking a new direction in connection with main bids.
The main innovation is that several main tenders can be expressly submitted even if several variants were not expressly requested for the submission of these main tenders. In its decision of November 25, 2013 (Verg 13/13), the OLG Munich merely adopted the case law that the OLG Düsseldorf had upheld in earlier decisions. In particular, the decision of the Higher Regional Court of Düsseldorf dated March 9, 2011 (VII-Verg 52/10) should be mentioned. This decision already addressed the fact that main bids can be submitted multiple times even if they were not expressly requested. In any case, this is the view of the Munich Higher Regional Court (Procurement Senate), represented by RiOLG Petra Willner, who expressed this view at a lecture event on July 9, 2014 (“10 Jahre Vergabe aktuell”).
This statement came as a real surprise to quite a few of the participants at the Bavarian Academy of Public Administration event in question. At least the Munich Higher Regional Court had not previously ruled with such clarity that the submission of multiple main tenders without an express request from the tendering body was permissible. This circumstance has not attracted so much attention so far because the cases in which several main tenders have been deemed admissible in recent years have, as far as can be seen, related to cases in which variants of main tenders had been clearly defined.
For example, several main offers have been affirmed in constellations in which prices were to be submitted for a 3-, 5- or 8-year term contract (OLG Düsseldorf, decision of July 28, 2005, VII-Verg 45/05). There are other known cases in which the Higher Regional Court of Düsseldorf deemed it lawful to offer a range of benefits in an insurance contract (with or without deductible or inclusion or exclusion of the insurance of certain objects) (decision of 22. 2. 2012, VII-Verg 87/11). In 2006, the Higher Regional Court of Munich had affirmed in its decision of January 27, 2006 (Verg 1/06) that there were different benefits for a medical device (MLC 80 or 120), whereby the variability in value of the benefit was also far more than 20% at that time. According to the express opinion of the Düsseldorf Higher Regional Court in proceedings VII-Verg 87/11, the variability in the value of services of a maximum of 15 to 20% in relation to the total contract value, which was previously only affirmed for optional items, expressly no longer applies.
This opens up completely new freedoms in the specification of services. However, the fact that a bidder can submit several main bids on its own initiative, even if these were not approved, is likely to be problematic. Surprise effects and a loss of transparency cannot be completely ruled out.
However, an important prerequisite for the value of two unsolicited main tenders submitted is that the bidder must clearly indicate this fact and that these tenders must also differ technically from one another. This was pointed out by the OLG Munich in its decision of 10.04.2014 (Verg 3/14).
Ms. RiOLG Willner from the OLG Munich also pointed out that extremely detailed service specifications are increasingly common. These are frequently drawn up by project designers/planners, who often copy product data sheets into the specifications. The consequence in one case was that the bidder offered a product for the kitchen equipment of a prison that did not correspond to the specifications in the bill of quantities. The bidder had offered a manufacturer’s product that did not contain an installation bridge, as required, but an installation wall. However, as the tendering body had expressly made it clear in the specifications that it wanted to procure an installation bridge and confirmed this with reference to hygiene reasons, this bidder had to be excluded as non-compliant with its offer (OLG Munich, decision of April 10, 2014, Verg 1/14).
