Award and contract regulations for services

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The procurement and contract regulations for services (VOL) are part of German procurement law and regulate the tendering and award of public sector contracts in the Federal Republic of Germany . Until 2009 it was called the contracting regulations for services , whereby under contracting the public announcement of conditions was to be understood in anticipation of a contract offer. In 2016, the regulatory content of the VOL / A was incorporated into the procurement ordinance (VgV) and the sub- threshold procurement ordinance (UVgO). The latter will gradually come into force in the various federal states through state legislations. The VOL / B is still valid.

The VOL was decided by the German Contracting Committee for Services (DVAL). It is used to implement the corresponding EU directives.

Delimitation of the procurement regulations

In contrast to the other procurement regulations in German procurement law , services in the sense of the VOL are almost all deliveries and (services) services . Exceptions are, above all, construction works that are dealt with in the VOB , as well as some freelance activities that fall under the awarding regulation for freelance services (VOF) : Writable freelance services were according to VOL, non-writable freelance services (e.g. the "classic" Architecture contract) but tendered according to VOF.

Legal character

The VOL is part of the cascading regulatory apparatus of German public procurement law .

  • At the first level, at the legal level, is the Act against Restraints of Competition (GWB).
  • The second level is followed by the public procurement ordinance (VgV).
  • On the third level, the procurement regulations - including the VOL - are on the same level as administrative regulations

As an administrative regulation , the VOL has no direct external effect. This is only established by referring to Section 97 (6) GWB.

Attention: The VOL / A is currently (as of January 17, 2018) being successively replaced by the UVgO . In the federal government and the Free State of Bavaria, this has already been done for government agencies. In many cases, this is still pending for state-funded agencies and municipal bodies. In Bavaria, the UVgO is recommended for the municipalities by the Free State of Bavaria, but not mandatory.

Content and structure

The VOL is divided into Part A and Part B.

Part A: General provisions for the award of services (VOL / A)

Until the amendment in 2009, there was a special structure in the VOL, which divided the procurement regulations into so-called basic paragraphs, a-paragraphs and b-paragraphs.

  • Basic paragraphs (section 1)
    tenders under German law below the threshold values
  • a-paragraphs (section 2)
    tenders according to European law (EC tenders) above the threshold values
  • b-paragraphs (section 3)
    tenders under European law for specific sectors

The basic paragraphs were always applied and were supplemented by the a-paragraphs when the European thresholds were exceeded.

According to the new legal situation, this system has been abandoned. Section 1 only applies to awards below the EU threshold values, unless replaced by the UVgO. Section 2 ("EC Paragraphs") of the VOL / A no longer applies at all, as it has been replaced by the procurement ordinance, which is much more extensive than earlier versions, since April 18, 2016 .

The threshold values ​​are derived from Section 106 of the Act against Restraints of Competition .

Part B: General contractual conditions for the execution of services (VOL / B)

It is a clause work with the character of the Terms and Conditions which by contracting authorities in accordance with § 29 para. 2 sentence 1 VgV and § 21 para. 2 UVGO become part of the concluded agreement is to be made.

Types of award below the EU thresholds

In Section 1, VOL / A distinguished between three types of award:

Public announcement

In the case of a public invitation to tender, services are awarded in the prescribed procedure after a public invitation to an unlimited number of companies to submit offers (§ 3 Paragraph 1 Sentence 1 VOL / A). That is, any number of companies that are active in the required market segment can submit offers and thus take part in the competition . The public invitation to tender is the rule from which deviations can only be made for special reasons (Section 3 (2) VOL / A).

Restricted invitation to tender

In the case of a restricted invitation to tender, contracts for services are awarded in the prescribed procedure after a limited number of companies have been asked to submit offers (Section 3 (1) sentence 2 VOL / A). The restricted invitation to tender is characterized by the fact that the number of bidders is limited by a preselection of the awarding authority. Selected providers are then requested by the registration office to submit an offer. As far as it is expedient, a so-called participation competition for the pre-selection of possible bidders should precede this.

The planned award of the contract is publicly announced and all interested companies can then submit applications for participation. The registration office then selects suitable applicants from these applicants, taking into account the general allocation principles, who are then asked to submit an offer.

Direct award

In the case of direct award, the client, with or without a competition, generally approaches several companies with whom the terms of the contract are then negotiated (§ 3 Paragraph 1 Sentence 3 VOL / A). This is the procedure with the lowest formal requirements, which also runs counter to the basic principles of public procurement law in many points . The direct award is therefore only used in exceptional cases for services of low value (the value limit can be issued by implementing provisions by a federal minister - possibly a state minister ), in the case of particular urgency or for services that are subject to commercial property rights.

Award types from reaching the EU thresholds

Once the EU thresholds were reached, section 2 of VOL / A was applied until it was replaced by the VgV on April 18, 2016. There, the different types of award were defined in § 3 VOL / A: Open procedure, restricted procedure, negotiation procedure and competitive dialogue.

Legal protection

As in the other areas of public procurement law, a distinction must also be made in the area of ​​legal protection between procedures below and above the EU thresholds. In principle, once the threshold values ​​have been reached, the bidders are entitled to comprehensive legal protection in accordance with European requirements. In contrast, the bidders are only entitled to limited protection below the threshold values. However, this is being expanded due to the new legal situation.

Legal protection options once the EU thresholds have been reached

Once the EU thresholds have been reached, those interested in the contract are entitled to extensive legal protection options:

  • Review procedure (public procurement tribunals, higher regional court)
  • Legal and technical supervision (supervisory complaint)
  • Compensation and injunctive relief through the ordinary courts
  • Complaint to initiate infringement proceedings with the European Commission

Legal protection options below the EU thresholds

Legal protection is far less pronounced below the threshold values. In particular, there is no direct verifiability of the procurement regulations to which the contracting authorities are subject once the threshold values ​​have been reached. This leaves only the following options:

  • Legal and technical supervision (supervisory complaint)
  • Compensation and injunctive relief through the ordinary courts

However, especially in the more recent case law, the standard of review of the ordinary courts has been expanded. In a new decision, the existence of a pre-contractual obligation was confirmed again, which obliges the provider to comply with duties of consideration, which also includes compliance with procurement regulations. This should at least be the case if the administration complies with the procurement regulations as part of the tendering process and is thus bound by itself. The legal claim can then be directed to an interim order not to conclude the contract.

literature

Web links

Individual evidence

  1. ↑ Bundesanzeiger Volume 58, No. 100, p. 3
  2. ↑ nhoppe: entered UVGO for the federal government in power. Retrieved January 17, 2018 .
  3. ↑ VVöA: 1. Introduction of the sub-threshold allocation regulation - Citizens Service. Retrieved January 17, 2018 .
  4. ↑ Interview with Mr. Hetmann about UVgO. Retrieved January 17, 2018 .
  5. ↑ Awards in the municipal area. Retrieved November 1, 2018 .
  6. ↑ http://www.vergabeblog.de/2012-04-18/olg-dusseldorf-bestatigt-noch-einmal-rechtsschutz-im-unterschwellenbereich-ist-nicht-auf-vorsatz-und-willkurakte-beschrankt-beschluss-v -19-10-2011-27-w-111 /