02.04.2014 | KPMG Law Insights

Permissible weighting of award criteria for the evaluation of the most economically advantageous tender

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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.

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