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.

Explore #more

13.06.2024 | Press releases

Handelsblatt and Best Lawyers honor KPMG Law Experts

Best Lawyers has once again identified the best commercial lawyers in Germany for 2024 exclusively for Handelsblatt. A total of 28 lawyers were honored by…

27.05.2024 | KPMG Law Insights

Agreement on ecodesign regulation: products to become more sustainable

After lengthy negotiations, the Council and Parliament of the European Union reached a provisional agreement on the Ecodesign Regulation on the night of December 5,…

22.05.2024 | KPMG Law Insights

The AI Act is coming: EU wants to get a grip on AI risks

For many people, artificial intelligence (AI) is the great hope for business, healthcare and science. But there are also plenty of critics who fear the…

17.05.2024 | KPMG Law Insights

Podcast series “KPMG Law on air”: When the family business is to be sold

Around 38,000 family businesses are currently handed over each year. In most cases, the change of ownership takes place within the family. But more and…

03.05.2024 | KPMG Law Insights

Doubts about inability to work? What employers can do

The certificate of incapacity for work (AU certificate) serves as proof of incapacity for work due to illness. However, only if the certificate meets certain…

27.03.2024 | KPMG Law Insights

EU Buildings Directive: life cycle greenhouse potential becomes relevant

On March 12, 2024, the EU Parliament approved the amendment to the EU Buildings Directive. The directive obliges member states and, indirectly, building owners and…

19.03.2024 | Business Performance & Resilience, KPMG Law Insights

CSDDD: Provisional agreement on the EU Supply Chain Directive

The EU member states agreed on the CSDDD, the EU Supply Chain Directive, on March 15, 2024. Germany abstained from the vote. Negotiators from the…

21.02.2024 | KPMG Law Insights, KPMG Law Insights

The Digital Services Act – what does it mean for companies?

The Digital Services Act (DSA) is a key component of the EU’s digital strategy and came into force on November 16, 2022. As a regulation,…

15.02.2024 | KPMG Law Insights

Data compliance management: How to implement it in practice

Part 3 of the article series “Professional tips for data compliance management”   The third part of this series of articles deals with data compliance

14.02.2024 | Business Performance & Resilience, PR Publications

Guest article in ZURe: Monitoring the implementation of the LkSG

The current issue of ZURe (p. 20 ff.) contains a guest article by KPMG Law Partner Thomas Uhlig (Head of General Business and Commercial Law),…


Mathias Oberndörfer

Mitglied des Vorstands Service Tax - KPMG AG Wirt­schafts­prüfungs­gesell­schaft

Theodor-Heuss-Straße 5
70174 Stuttgart

tel: +49 711 781923410

© 2024 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit

 KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.