Tender evaluation in public procurement law

The evaluation of the offers by the public sector takes place in four statutory levels, the order of which must be observed. A commingling of the levels, an evaluation at the wrong level or the multiplying of a criterion can easily lead to a violation of bidding rights.

First Assessment Level

At the first stage (§§ 19 EC para. 1-4 VOL / A and 16 para. 1 VOB / A) it is necessary to check whether the offers meet the formal requirements. A distinction must be made between the infringements which imperatively exclude supply (e.g. lack of essential price information or signature, late receipt of tenders, alterations / additions to the tender documents) and infringements in which the public authorities have discretion in relation to exclusion (e.g. an offer does not contain the required information and explanations).

Second Assessment Level

At the second stage (§§19 EC Abs. 5 VOL / A and 16 Abs. 2 VOB / A) the suitability, the capacity and the reliability of the bidders are examined on the basis of the evidences submitted by the bidders.Only such evidences must be considered, as required in the contract notice. A request for additional evidence is admissible (§§ 19 EC Abs. 2 VOL / A, 16 Abs. 1 Nr. 3 VOB / A).

Third Assessment Level

At the third stage (§§ 19 EC Abs. 6 VOL / A and § 16 Abs. 6 Nr. 1-2 VOB / A) the appropriateness of the prices is controlled.Offers where the price appears to be unreasonably low in relation to the service should be identified and excluded. In these cases, there is a risk of poor performance due to lack of cost recovery.

Fourth Assessment Level

At the 4th stage (§§ 21 EC Abs. 1 VOL / A and § 16 Abs. 6 Nr. 3VOB / A) the most economical tender will be determined according to the award criteria specified in the contract notice.Note: This is not necessarily the cheapest offer.

Threshold values in public procurement law

If, according to § 2 VgV*[1], the expected order value exceeds a so-called threshold, a Europe-wide awarding proceeding must be carried out. In such a case, it can be assumed that the mandate is of cross-border interest and relevant to the internal market. Above these thresholds, here applies laws “coined” by the European directives (the GWB); below these thresholds only national law applies.

The thresholds are constantly being re-determined (usually increased).

European Threshold Value (EU-wide invitation to tender required)

The threshold values ​​are currently defined as follows (§ 100 (1) GWB, § 2 VgV, § 1 (2) Sekt-VO):

  • For construction contracts, EUR 5.186.000 net
  • For supply and service orders, EUR 134.000 net of the highest / upper federal authorities
  • For supply and service contracts, EUR 414.000 net in the area of ​​drinking water, energy supply and transport
  • For all other delivery and service orders, EUR 209.000 net  

Meaning of thresholds for bidders 

Thresholds are of major importance for the legal protection possibilities of the bidders. It is therefore illegal for contracting authorities to subdivide a contract into subcontracts in order to remove it from the scope of European procurement law.

Thresholds of the German Regions – Länder (de minimis limits)

National public procurement law also recognizes thresholds that are to be distinguished from the thresholds mentioned above: the legislators and regulators of the federal and state governments determine when it is necessary to carry out a procurement procedure (de minimis limit) and which type of award procedure applies. For example purposes, following the threshold values ​​of some Länder:  Limited tender Free-handed awardingConstruction services 500.000 EUR net 50,000 EUR netDelivery costs 100.000 EUR net 10,000 EUR netServices 100,000 euros net 10,000 euros netFreelance services none

[1] *VgV: Verordnung über die Vergabe öffentlicher Aufträge,  Regulations on the Award of Public Contracts