Article(s) in Directive 2014/24/EU: 5(8)
Topic: Calculation of the value of procurement
Member State: GER
Court/rev. board: OLG München
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Note: This case concerned Art. 16(8) Dir 25, not Art. 5(8) Dir 24. However, since the issue dealt with in this case is identical under Dir. 24 and 25, the decision is relevant under Dir 24 as well.
3(7) VgV implements Art. 5(8) of EU/2014/24 quite literally. However, there is one striking difference with respect to the procurement of design services (as provided, in particular, by architects and engineers).
“Where a proposed work or a proposed provision of services may result in contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots. In the case of design services, this applies only to lots for services of the same kind [“gleichartige Leistungen”]. Where the aggregate value of the lots is equal to or exceeds the applicable threshold, the VgV shall apply to the awarding of each lot.”
The respondent, who supplied electricity, natural gas, drinking water and heat supply sectors, intended to construct an administrative building for its employees. The respondent put the planning services for the structural design of the building out to tender in a competitive procedure with negotiation. The applicant filed a complaint against the publication. The complaint was declared inadmissible by the competent public procurement chamber. The chamber argued that the planning services for the structural design did not reach the applicable threshold. The applicant appealed against the chamber’s decision and argued that when calculating the value of the procurement, all relevant planning services procured for the construction of the administrative building had to be added.
The decision concerned, inter alia, the question of whether/when the procurement of services related to a certain project are to be considered (1) as several distinct contracts or (2) as one service contract that is merely divided into several separate lots (but is to be treated as a single contract for the purpose of calculating the threshold). This is a question which is relevant to public procurement in general, but the German legislator has included § 3(7)(2) VgV as a specific rule with regard to design services. These services are usually carried out by architects and engineers, i.e. professions which require specific qualification in Germany and hence are specifically regulated by the German delegated legislation regarding the fees for services provided by architects and engineers (“Verordnung über die Honorare für Architekten- und Ingenieurleistungen” – HOAI).
The court first reported the prevailing interpretation of § 3(7) VgV in Germany, in particular of the specific calculation rule regarding the procurement of design services. This interpretation takes the different HOAI performance profiles as an indication for the question of whether planning services are “of the same kind” within the meaning of § 3(7) VgV. Accordingly, since the respective planning services for the object design, for the structural design and for the planning of the technical building equipment are regarded as different performance profiles under the HOAI, they were not to be added for the purpose of calculating the value of procurement in the case at hand.
The court doubted, however, that this interpretation is in line with Art. 5(8) of Dir 24 as interpreted by the ECJ. For the ECJ, a functional view is relevant for the question of whether the procurement of several services needs to be considered (1) as several contracts or (2) as one single service contract that is only divided into separate lots (or sections) but is to be treated as a single contract for the purpose of calculating the threshold. Therefore, when assessing the uniform character of a bundle of services, the economic and technical functions of the services should be examined – and not whether they are “of the same kind”.
In the case at hand, the court came to the conclusion that, following from the ECJ’s functional approach (and probably in contrast to the prevailing opinion in German jurisprudence), the concrete planning services for the object design, for the structural design and for the planning of the technical building equipment were to be added for the purpose of calculating the value of procurement.