Particularly in the IT sector, awarding authorities often find it difficult to conclusively formulate the suitability and award criteria for the intended award procedure. In many cases, the requirements are too unfamiliar and the ideas of the company's own processes and requirements too imprecise. However, this does not justify subsequently establishing criteria that did not play a role in the tender documents (VK Saxony-Anhalt, decision of 29.09.2015 - 3 VK LSA 65/15).
At issue: A district wanted to put services for IT support and maintenance activities in several of its schools out to tender. Bidders had to provide various proofs of suitability and also name a contact person who should be available on weekdays within certain time windows.
In response to this invitation to tender, one bidder applied as an individual. He was able to provide the required references and subsequently achieved the highest score of all bidders in the tender evaluation. It was only at this point that the responsible committee of the district council had doubts as to whether and how a single person could provide the services owed within the required response times in the event of simultaneous disruptions at several locations. The specialist service of the awarding authority considers this to be unproblematic because the tendered services are only to be used in addition to the specialist service's own services anyway.
Nevertheless, the bidder's offer was excluded from the award procedure due to the lack of proof of how parallel services could be provided without appointing a representative.
This is not how it works, the Saxony-Anhalt Public Procurement Chamber states. The awarding authority cannot subsequently establish new criteria by means of internal coordination that did not play a role in the contract notice or in the award documents provided later. Without a specific requirement in the documents published in advance, bidders do not have to provide corresponding evidence.
Of course, this is the right decision, which once again proves how much public contracting authorities should rely on competent advice when drawing up the tender documents in order to avoid inadequacies in the specifications from the outset. This is because the subsequent concerns of the district cannot be entirely dismissed. However, in this case, the district would have been forced to (partially) cancel the award procedure and retender in this respect - a path that can at most be the second-best solution compared to a comprehensively prepared award, if only because of the considerable effort involved.
