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28.07.2014 | KPMG Law Insights

Public Procurement Law: No Subsequent Requirement of Incomplete Documents

Dear Readers,

Also during the summer break, we would like to provide you with current topics concerning EU state aid law. And what could be more natural than to report on the contents of the new Union framework? Our first article is about some innovations dealing with the classification of university and research institution activities as “economic” or “non-economic” activities.

As you can already see from the title of the article, however, the innovations do not necessarily lead to more clarity and thus to the long-awaited legal certainty for universities and research institutions. On the contrary, there remain numerous vague regulations and terminology that require interpretation and do not exactly simplify day-to-day dealings with EU state aid regulations.

The German government’s plans to amend the Basic Law in connection with the ban on cooperation between the federal and state governments in the field of education have been and continue to be the subject of extremely controversial debate. If the ban is overturned, the federal government is likely to contribute to university funding in the long term. A cash infusion that brings basic financial security to universities?

As usual, you’ll also find other articles on grants and procurement law.

We wish you interesting reading!

Sincerely yours

Public Sector Team of KPMG Rechtsanwaltsgesellschaft mbH

Mathias Oberndörfer Dr. Anke Empting

 

According to the decision of the OLG Celle of April 24, 2014, a subsequent request for documents is not possible if the required declarations and evidence are insufficient in terms of content.

A supply contract was put out to tender in a negotiated procedure with a preceding competitive bidding process. According to the conditions of participation published throughout Europe, the applicants had to submit references and a confirmation of the reference in accordance with the reference letter attached as a form as proof of their technical capability. The documents for the partial bidding competition also contained the note that the references provided would only be evaluated if the required information was provided in full and if they were confirmed by the reference provider using the attached form.

One bidder, namely the applicant in the review proceedings, attached to its request for participation, instead of the information and confirmation of references required on the forms, merely informal letters from the reference providers, without any recognizable reference to the reference information required in the conditions of participation. As a result, the contracting authority excluded the applicant’s request to participate on the grounds that the references could not be evaluated due to the lack of required reference letters. The applicant objected to this and argued that the contracting authority should have given him the opportunity to submit the documents subsequently.

After unsuccessful review proceedings before the Procurement Chamber, the applicant filed an immediate appeal.

Additional demand only in case of formal deficiencies or missing documents

Without success! In the opinion of the awarding senate of the OLG Celle, the non-use of the form is harmless if the reference letters submitted without form contain the same information as the forms. However, this had not been the case, and it had therefore not been possible to request additional documents. This is because a subsequent claim can only be considered if the evidence has not been submitted by the bidders at all or if it has formal deficiencies. In view of the fact that the informal letters of reference would have been sufficient if they had also been complete in terms of content, there was not only a formal defect, but also a defect in content, for which, however, there is precisely no possibility of a subsequent claim.

Less work for universities and research institutions in their function as public clients! This is because, in cases where bidders have submitted documents with formal and substantive deficiencies, they do not have to make additional demands in order to obtain the desired documents. But beware: this right also becomes an obligation not to make any additional demands, even if you would have liked to keep the bidder with the substantively defective documents in the procedure.

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Contact

Mathias Oberndörfer

Geschäftsführer
Mitglied des Vorstands Service Tax - KPMG AG Wirt­schafts­prüfungs­gesell­schaft

Theodor-Heuss-Straße 5
70174 Stuttgart

tel: +49 711 781923410
moberndoerfer@kpmg-law.com

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