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.