Side offer
A secondary offer (used synonymously: special proposal , change proposal , variant ) is an offer that represents a deviation from the intended performance. The term is particularly relevant when awarding services in formal award procedures.
definition
According to VOB / A , a supplementary offer exists if the content of an offer differs from the service provided by the client in its service description. In order not to be excluded from the award, the ancillary offer must be equivalent to the required level of protection in terms of safety, health and usability , provided it deviates from the technical specifications within the meaning of Section 7 Paragraphs 3 to 8 VOB / A be. The deviation must be clearly marked in the offer and the equivalence with the offer must be proven (cf. § 13 para. 2 VOB / A). Furthermore, the minimum requirements stipulated by the client in the tender documents must be met (cf. § 8 Paragraph 2 No. 3 and § 16 Paragraph 1 No. 1 VOB / A).
The deviations in content from ancillary offers can relate to the service itself, the framework conditions of the contract or the billing. The degree, scope and significance of the deviations in terms of content are irrelevant. Ancillary offers must be made on a special system and clearly marked as such.
Regulations
In addition to the German VOB, regulations under European law also contain specifications for ancillary offers. The procurement coordination guideline, in which the conditions for secondary offers are regulated under Section 24 Variants, is particularly relevant in practice. In particular, this provision results in the obligation of clients to specify minimum requirements for bidders in the tender documents. This topic became known in particular through the so-called "Traunfellner decision" of the European Court of Justice on October 16, 2003.
Economical meaning
Ancillary offers are of considerable importance in the economy, especially in the construction industry. For the client, this gives the opportunity that specialized companies in particular offer different processes, building materials or contractual conditions as bidders, which enable a more cost-effective, more economical, technically more advanced or faster to realize option for realizing a building project. For bidders, a secondary offer in return can create decisive advantages in the competition for the most economical offer in an award procedure.
Jurisprudence
In case law, decisions by public procurement tribunals and senates deal in particular with questions of public procurement law. The Düsseldorf Higher Regional Court ruled that it is permissible to submit several main offers and that the erroneous designation as ancillary offer is harmless. In terms of contract law, it can be summarized in a simplified manner in the result that a bidder is only liable for the impairments that he has caused by his ancillary offer and that would not have occurred in any case during the execution of the official draft.
Architects and engineers who are commissioned and paid by the client according to HOAI for the service phase 7 "Participation in the award" are also obliged to check and evaluate ancillary offers and suggested changes. The Schleswig Higher Regional Court ruled on April 18, 2006 - 3 U 14/05 that the examination of ancillary offers without fundamentally different constructions in terms of technical and functional feasibility, which would result in planning changes, is not a special service subject to remuneration. In the version of HOAI 2013, checking and evaluating secondary offers is now a special service.
literature
The standard works, in particular on building law (Ingenstau / Korbion , Motzke / Pietzker / Prieß, Kapellmann / Messerschmidt, each on VOB / A and VOB / B) regularly deal only marginally with the problem of ancillary offers, despite their considerable practical relevance. In particular, the significance of contract law has hardly been dealt with so far. Günther Schalk provides a comprehensive presentation in his dissertation, Secondary offers in construction (University of Augsburg, November 2007, published online on the OPUS server). He also published the monograph Handbuch Nebenangebote (Werner-Verlag 2009), which deals with procurement and contract law as well as construction and technical aspects of the ancillary offer.
Individual evidence
- ^ Andreas Belke: Allocation practice for clients: legal basis - preparation - processing . Springer, 2010, ISBN 978-3-8348-1325-1 , pp. 68 .
- ↑ Directive 2004/18 / EC of the European Parliament and the Council , accessed on March 8, 2013
- ↑ ECJ, judgment of October 16, 2003 Az. C-421/01. Attorney Dr. Thomas Fuchs, lexetius.com, accessed March 8, 2013 .
- ^ Higher Regional Court Düsseldorf, decision of March 9, 2011 , Az. VII-Verg 52/10, full text and comments by Dr. Soudry .
- ^ Klaus D. Siemon: HOAI practice in architectural services . 8th edition. Springer, 2009, ISBN 978-3-8348-9700-8 , pp. 197 .
- ↑ HOAI: HOAI . 2013th edition. z. B. Annex 12: Engineering structures.
