Bundesgerichtshof, Order, 4 April 2017, X ZB 3/17
Article(s) in Directive 2014/24/EU: 67(1) and (2)
Topic: Assessment of criteria
Member State: GER
Court/rev. board: BGH
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
In § 127(1)(1) GWB, the national legislator has implemented the principle laid down in Art. 67(1) of the directive. Art. 67(2) gives the member states a margin of implementation regarding the definition of the “most economically advantageous offer” and – within certain limits – also regarding the assessment of award criteria. The German legislator has determined in § 127(1)(3) GWB that the most economically advantageous offer is the one with the best price-quality ratio. With regard to the criteria, § 127(1)(4) GWB is less detailed that Art. 67(2) of the directive and only states that, in addition to price or cost, also qualitative, ecological and social aspects may be taken into account.
The respondent awarded a framework agreement for mail services in an open procedure. The relevant award criteria were the price (50%) and the quality (50%) of the services. The respondent applied a point system in which 1% was equal to 1 point.
As regards quality, the award documents contained three sub-criteria: (1) fluctuations in the number of consignments/peak orders (15% or 15 points), (2) ensuring the effective provision of services (25% or 25 points) and (3) delivery times (10% or 10 points). With regard to the first and second sub-criteria, the respondent gave “school grades” to the written presentations as used in the German school system, i.e. on a scale reaching from 6 (which was equal to 0 points – “insufficient”), 5 (which was equal to 1 point – “poor”), 4 (which was equal to 2 points – “sufficient”), 3 (which was equal to 3 points – “satisfying”), 2 (which was equal to 4 points – “good”) to 1 (which was equal to 5 points – “very good”). The scores obtained in the subcategories were added together and then added to the score obtained for the price criterion.
The applicant complained inter alia that the price assessment matrix was not transparent because tenderers could not see from the award documents what exactly was required from them in order to obtain a certain grade.
The court held that the assessment scheme was sufficiently transparent.
The contracting authority has a wide margin of appreciation for assessing the award criteria. While § 97(1)(1) GWB requires the award of contracts in a transparent and competitive manner, it is not incompatible with this provision to grade the concepts submitted by the bidders without the award documents containing any further concrete information on which criteria the respective number of points for the concept should depend on. The court reasoned that Art. 42(3)(a) of Dir 24 provides that technical requirements can be formulated as “performance or functional requirements”. Through functional requirements, contract authorities can procure innovations by leaving it to the tenderers to develop and present solutions and concepts for the fulfilment of a specific task. If the contracting authority now had to set out in detail in the documents which requirements a tender must meet for a particular evaluation, the idea of a functional technical specification would be rendered absurd.