Contracting authorities have the right to have their candidates proving their capability: it that right? Let’s read an interesting case (VK Bund, Decision of 29.04.2021 (Ref.: VK 2-5/21)) about it. 

Facts of the case:
A negotiated procedure with a call for tenders was conducted for an awarding proceeding. In order to prove their suitability, applicants had to provide, among other things, reference projects. The applicants had to provide detailed evidence of their suitability with regard to the implementation of comparable reference projects. One of the bidders submitted a bid after a successful request to participate. However, the contract was to be awarded to another competitor. One bidder claims that the best bidder could not provide the references and submits a request for review.

The application is unfounded. Pursuant to Section 47 VgV, a bidder may, in principle, rely on the capacities of other companies to prove its capability if it proves that the necessary resources are actually available to it.

In practice: if you have uncertainties about a tender proceeding, get in touch with a lawyer. We can advice you for the best legal decision to take.