The Sub-Threshold Procurement Regulations (UVgO) have been in force in the federal government since September 2, 2017 and in the federal state of Hamburg since October 1, 2017. It will apply to the state authorities of the Free State of Bavaria from 1. 1. 2018. Freelance services are generally covered under Section 1 UVgO. § Section 50 UVgO allows, on the basis that competition must also be organized here “in principle”, an examination as to whether this cannot be assessed differently in view of the “nature of the legal transaction” and in view of the “special circumstances”.
This creates a great deal of scope for awarding contracts to a single economic operator, for example.
- for so-called continuation orders with existing prior knowledge of a project,
- for cases where a higher level of trust is required
- or for the constellations of a company’s previous investments.
The specific circumstances of the individual case in particular may therefore allow competition to be waived. The regulation therefore does not go so far as to require a case in which, for technical (or economic) reasons, only one company is able to provide the service in question. This leaves room for a certain degree of discretion, which is based on the opportunity with regard to the organization of a competition.
So what does “opportunity” mean? In addition to technical reasons, this can also be based on economic reasons. Perhaps competition is theoretically conceivable, but this is not expedient because a new freelancer first has to familiarize himself with the project, which is unfamiliar to him, at great expense. However, it is also possible that these aspects are rooted in personal contacts and the associated trust that is essential for good performance in individual cases. These situations are naturally sensitive because the boundary to a “known and proven” approach, which was discredited a long time ago by the Federal Court of Justice and has been frowned upon ever since, can quickly be reached and even crossed. It is undoubtedly better, in the case of awarding freelance services without competition, to be guided as far as possible by objectively comprehensible circumstances. On the other hand, aspects of “feeling, thinking, noticing, thinking” can quickly lead to legal uncertainty and also to the “end” under public procurement law.
How does this competition, which may be restricted to a single contractor with good reason, relate to the state price regulations of the HOAI? The HOAI restricts the range of price competition generally sought in tendering law to practically zero anyway. The only alternative would be to go to great lengths, as is usual in the upper-threshold sector, and to use additional award criteria such as organizational approach and concepts, combined with presentations. However, this effort is not worthwhile if the contract only reaches relatively marginal values such as a few tens of thousands of euros. To this end, the “Richtlinien für die Durchführung von Bauaufgaben des Bundes (RBBau)” (October 2017 version), which are often also applied in the federal states (e.g. Saxony-Anhalt), stipulate that in the case of freelance contracts subject to the HOAI, it is sufficient to obtain a single offer if the net fee value does not exceed €50,000. This provides a practical approach that is likely to reduce uncertainties in practice to some extent.
