Dear Readers,
Shortly before the European elections, our focus this time is once again on EU state aid and subsidy law.
Exciting times are coming for the research and development landscape: The EU Commission has issued a draft communication on state aid, especially for R&D&I projects. This draft is cause for celebration, as the Commission is now defining and concretizing numerous terms and funding instruments from the various EU funds in a cross-regulatory manner, thus creating greater legal certainty.
In addition, the ECJ has commented on the binding of national courts to opinions of the EU Commission and clarified that national courts are not bound by subsequently issued opinions of the Commission when implementing decisions of the EU Commission, but must take them into account in accordance with the principle of loyal cooperation.
We wish you an exciting read!
Your Public Sector Team at KPMG Rechtsanwaltsgesellschaft mbH
Mathias Oberndörfer Dr. Anke Empting
It was not until the end of 2013 that the Düsseldorf Higher Regional Court ruled that a 95 percent valuation of the price was inadmissible because it violated the principle of economic efficiency. In its decision of January 14, 2014, the Federal Procurement Chamber (VK Bund) has now ruled that the weighting of the award criteria “price” and “technical value” in a ratio of 90:10 is permissible under procurement law.
In the case to be decided by the VK Bund, the client invited tenders for construction services throughout Europe. The award criterion was the most economically advantageous bid. The evaluation matrix stipulated that the price should be included in the evaluation with 90 percent and the technical value with 10 percent.
In the course of the review proceedings, one of the applicants complained that the weighting of the price at 90 percent meant that only the lowest price was decisive for the award of the contract, while the criterion of “technical value” at 10 percent was in fact of no significance in the evaluation. In this regard, the applicant referred to the previously cited decision of the Düsseldorf Higher Regional Court of November 27, 2013.
Valuation of the price at 90 percent does not violate the principle of economic efficiency
The VK Bund rejected the request for review because it did not see any violation of the principle of economic efficiency. In its reasoning, the Procurement Chamber stated that the facts to be assessed by the Düsseldorf Higher Regional Court at the end of 2013 differed significantly from the present case. While the “price” evaluation criterion had been given a weighting of 95 percent in the proceedings before the Düsseldorf Higher Regional Court, the facts of the case to be assessed by the Procurement Chamber involved a weighting of only 90 percent for the price.
Scoring a criterion with 10 percent does not necessarily have an “alibi function
In addition – according to the Procurement Chamber – the criterion “technical value”, unlike in the case of the Düsseldorf Higher Regional Court, does not have a mere “token function”. This was because the bidders were required to provide information on the “construction process” and the “construction sequence” – each sub-criteria of the “technical value” criterion – which were evaluated using a differentiated points system and included as a basis for the evaluation. As a result, the points obtained under the “technical value” criterion can influence the ranking of the bidders, and a mere “token function” of this criterion in addition to the price is therefore excluded.
In addition, the Procurement Chamber stated that in individual cases it could also be objectively justified to give the price significantly greater importance than other criteria. If the services to be provided – as in the present case – were specified in great detail in the tender documents, there would be no room for the bidders’ “own creative” services in the course of preparing the bid. If the service is largely specified by the client, competition takes place primarily at the level of pricing, but not at the level of quality, which justifies a significant weighting of the price.
