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VK Westphalia, Ref.: VK 2-20/21 of 14.07.2021


In the context of a procurement procedure in the EU upper threshold range, the refurbishment of conveyor technology in a central hospital was put out to tender. To prove technical and professional capability, proof of at least three references on refurbishments in existing buildings in current hospital operation (not older than three years) with a certain volume had to be submitted. In addition, the bidders had to name the supervising person upon submission of the bid, who had to provide evidence of at least three references for conversions in existing buildings in ongoing hospital operation (also not older than three years) with a specific volume.

The references submitted by the applicant, which referred to the service in question, were all more than three years old. An additional list of references submitted showed a total of four construction measures in the last three years, which, however, had not been carried out during ongoing hospital operations.

According to its award notice, the contracting authority assessed the applicant’s bid as inadequate because a detailed explanation of the prices was missing. The contracting authority made no note of the references that did not meet the requirements. After the applicant did not receive any bidder information but discovered the notice of awarded contracts, the applicant filed a request for review.

The Procurement Chamber decided that the request for review was admissible but unfounded.

The proper transmission of the bidder information could be irrelevant pursuant to Section 134 GWB. Irrespective of the existence of the requirements of §§ 134, 135 GWB, the bid of the applicant had to be excluded even in the case of a postponement of the procedure pursuant to § 16a EU para. 5 VOB/A, as the required references had not been provided. The contracting authority had properly requested the submission of references within the meaning of Section 122 of the ARC, which could not be older than three years and had to relate to the provision of services in ongoing hospital operations. However, the reference services provided in ongoing hospital operations were all older than three years. Although the services listed in an additional document were from the specified period, they were not references to the provision of services in ongoing hospital operations. Consequently, the applicant did not have any evidence that fulfilled the minimum requirements.


Before submitting a bid, tenderers should, in their own interest, deal with the specific evidence of suitability required in the contract notice. If the suitability cannot be proven, there is a risk of mandatory exclusion from the tender. Make sure to contact a legal If you are not sure about the tendering requirements.