Tender

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An invitation to tender is the public or restricted, written request to submit offers for the deliveries or services named in the tender . This is done in newspapers , specialist magazines or, increasingly, online via special tendering platforms. The term submission describes a procedure in which a submitter (provider) submits to the willingness of the tenderer, ie a (potential) client, to accept. The willingness to accept can be found in the tender documents. Often, submission is also called the tendering process (CH).

Tendering rules for contracting authorities

The rules for tendering procedures for contracting authorities are divided into the area above the so-called threshold values ​​and below the threshold values.

Tenders from the threshold values

(Often called incorrectly "Europe-wide tender") for calls from the thresholds apply the rules of the Agreement on Government Procurement (Engl. Government Procurement Agreement , in short GPA). This plurilateral agreement regulates the non-discriminatory, transparent and constitutional award of public contracts . The so-called threshold values ​​refer to the order size from which the regulation should apply - for example EUR 214,000 for delivery services and EUR 5,350,000 for construction work. In contrast to the view in German-speaking countries, according to which the bidders have no legal claim to an error-free award procedure, here the bidders have a right of action before an independent court to ensure compliance with the award rules.

The European Union is a signatory to the GPA. In order to ensure the standardization of the procurement procedures in their area of ​​application, it has issued guidelines to the EU member states , according to which the national states must adapt their procurement procedures to these rules. Bidders from all GPA states are allowed to take part in the tendering process and their offers must be evaluated in a non-discriminatory manner.

In Germany, the rules are set out in the fourth part of the Act against Restraints of Competition (GWB), in the procurement ordinance (VgV), as well as the special provisions of the procurement and contract regulations for construction services (VOB part A). The equivalent of the threshold values ​​in the European currencies euros, pounds sterling, kroner etc. is recalculated and published every two years by the EU Commission in accordance with the fluctuations in the exchange rate of the Special Drawing Rights (SDR). The last adjustment was made by Regulation (EU) No. 1336/2013 of December 13, 2013 and has been in force since January 1, 2014. The changed values ​​are to be applied immediately in all EU countries from the validity date, even if the changed values ​​have not or not yet been anchored in the national regulations.

Tendering process below the thresholds

Only national law applies to tender procedures below the threshold values. Bidders from the entire European Economic Area (EEA) are allowed to participate . In addition to the member states of the European Union, this also includes Iceland, Norway and Liechtenstein. Switzerland is involved in a separate agreement. The legal basis for this results from the Unification Treaty to the European Economic Community, the Unification to the EEA and the separate agreement with Switzerland. In Germany, the fourth part of the GWB, the VgV, the VOF and the special regulations of the VOB and VOL do not apply in this area. For orders below the threshold values ​​for freelance services, the corresponding fee regulations apply, e.g. B. the fee schedule for architects and engineers (HOAI).

In-house awarding or in-house business is not subject to the obligation to tender . The persons and companies listed in the corruption register can be excluded from the advertisement.

Types of tenders

A distinction must be " Public procurement " - "from reaching the thresholds Open procedures " - and " Restricted tender " - from reaching the thresholds " Restricted procedures " called.

In the case of a public invitation to tender (open procedure), services / construction works are awarded to an unlimited number of companies to submit bids in the prescribed procedure following a public request. Public invitation to tender must take place, unless the nature of the business or special circumstances justify an exception (see § 3 of VOB / A and VOL / A).

In the case of a restricted invitation to tender, services / construction works are awarded in accordance with the prescribed procedure after a limited number of companies have been invited to submit offers. A restricted invitation to tender should only take place (see § 3 of VOB / A and VOL / A) if

  1. the service can only be carried out in a suitable manner by a limited group of companies, especially if exceptional specialist knowledge or efficiency or reliability is required,
  2. the public invitation to tender would cause the client or the applicant an expense that would be disproportionate to the achievable benefit or the value of the service,
  3. a public tender has had no economic result, or
  4. a public invitation to tender is inappropriate for other reasons (e.g. urgency, confidentiality).

According to VOB / A, the following services can be tendered to a limited extent up to an order value of the construction work without sales tax of

  1. € 50,000 for finishing trades (excluding energy and building technology), landscaping and road equipment,
  2. 150,000 € for civil engineering, traffic routes and civil engineering, and
  3. 100,000 € for all other trades.

Publication of tenders

Public tenders are to be announced in Germany according to § 12 of VOB / A and VOL / A, e.g. B. in daily newspapers, official publications or on Internet portals; they can also be published on www.bund.de. Some federal states have their own tender portals. In addition to the official publication gazettes and portals, there are also numerous commercial journals and portals that are dedicated to the publication of tenders. At the municipal level, the publication of tenders is very different. Often, “tender notices” are published in the local press, which do not contain the full mandatory publication text but refer to the sources in public and commercial journals and portals. Once the threshold values ​​have been reached, the tender publication must also be sent to the Official Journal of the EU, which translates the tender publication into all official EU languages ​​and publishes it on its tender portal "Tenders Electronic Daily" (TED) . Orders below the threshold values ​​can be published on the TED portal. In these cases the question: "Does the order fall under the procurement agreement (GPA)" must be answered with no.

See also: Tender Database

Variants of the tender in the private sector

In the private sector, too, one often speaks of tendering, but one is not bound by the formal requirements of public procurement law. Various variants have developed here on the market.

From the English usage, designations for various types of advertisement are also borrowed for the German-speaking area:

  1. RFI (Request for Information): Inquiry to potential suppliers as to whether they can in principle meet an outlined requirement. The answers given usually contain list prices. This tender variant is suitable for first exploring the market .
  2. RFQ (Request for Quotation): For a requirement that is described in detail ( specification sheet ), a service description with a price that is as precise as possible, but usually non-binding, is requested. These inquiries are sent to suppliers whose fundamental performance the sender is already convinced of.
  3. RFP (Request for Proposal): Invitation to tender in the usual sense, i. In other words, the submitted offers are binding within the specified period of validity in such a way that a contract is concluded through a mere declaration of acceptance by the company placing the tender. The tender inquiries contain a detailed description of services or a specification sheet as well as all additional agreements belonging to the conclusion of the contract. Tendering procedures are also used within (larger) companies. There is basically no obligation to accept one of the offers.
  4. RFF (Request for Feature): Request to expand a system or offer.

Contract auctions in the private sector

In the private sector, which is not bound by the regulations of public procurement law, tenders are increasingly also being carried out as mostly internet-based order auctions . This is a currently developing field that has only emerged since around 2003.

Vadium

In Austria, the Vadium serves as a guarantee in the event that the bidder withdraws from his offer during the award period; in this case it is forfeited in favor of the client.

See also

Web links

Wiktionary: Tender  - Explanation of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Peter Gauch, Der Werkvertrag RN460
  2. ↑ EU Commission announces new EU threshold values ​​for 2020/2021 | B_I tendering services. November 13, 2019, accessed February 6, 2020 .
  3. ↑ Directive 2004/18 / EC (PDF) of the European Parliament and of the Council of March 31, 2004 on the coordination of procedures for the award of public works contracts, supply contracts and service contracts
  4. ↑ Directive 2004/17 / EG (PDF) of the European Parliament and of the Council of March 31, 2004 on the coordination of the award of contracts by clients in the field of water, energy and transport as well as postal services
  5. ↑ Law against Restraint of Competition (GWB)
  6. ↑ Procurement Ordinance (VgV)
  7. ↑ Regulation (EU) No. 1336/2013 of the Commission of December 13, 2013 amending Directives 2004/17 / EC, 2004/18 / EC and 2009/81 / EC of the European Parliament and of the Council with regard to the threshold values ​​for Procurement procedure Text with EEA relevance , accessed on 16 May 2013 . In: EUR-Lex .
  8. ↑ Fee schedule for architects and engineers HOAI
  9. ^ Tenders Electronic Daily (TED)