What is the full form of VK
April 27, 2020: In principle, all EU procedures are to be carried out fully electronically via an e-procurement platform. Section 53 (2) VgV only allows a different form of transmission in exceptional cases.
In an EU-wide open procedure, the contracting authority tendered stab protection vests for the penal system as a framework delivery contract. The notice and the invitation to submit tenders stated that tenders should be submitted electronically. At the same time, the invitation to submit an offer contained the information that an offer label attached to the tender documents "glued to the sealed envelope" should be "which contains your complete offer documents". In addition, a checklist for self-examination of the completeness of the offer was part of the tender documents. Bidder A submitted his offer along with a required sample stabbing vest by post. His offer did not contain a concept for "individual adaptation" of the protective vests. The checklist also did not provide for a concept of the bidders as part of the offer. The offer of A was excluded due to a formal error and incompleteness. On the other hand, A defends himself in front of the responsible procurement chamber.
With success. Both the exclusion due to a formal violation and the incompleteness of the submitted offer are unlawful. Public clients are obliged to make the documents to be submitted clear and, above all, free of contradictions; this also applies to the normal case of electronic submission of tenders. Any ambiguity leads to the option of submitting offers by post in favor of the bidders. Public clients could also allow the submission of tenders by post! Section 53 (1) VgV does not regulate a clear priority for the electronic submission of tenders. Rather, section 53 (2) VgV opens up exceptions (samples, models, plans, etc.) for physically necessary components of the offer, so that unclear indications lead to uncertainties among the bidders. Due to the ambiguous formal information in the invitation to submit a bid, Bidder A was allowed to submit his bid electronically or by post. Nothing else applies to the unjustified exclusion due to incompleteness. Requirements for the documents to be attached to an offer could be outside of a checklist. However, if the contracting authority provides a voluntary checklist, it creates a state of trust with regard to the completeness of the components of the offer. This obliges him to always request additional documents that are missing from the checklist. In this respect, the exercise of discretion with regard to the additional claim is reduced to zero; an immediate exclusion due to incompleteness of the offer is not possible.
As a result, the public procurement tribunal must be fully approved. With regard to the interpretation of the statement in Section 53 VgV, however, caution is advised: Section 53 (1) VgV regulates the rule of electronic procurement based on the principle of electronic communication anchored in the procurement law. The declared major goal in the near future is paperless procurement. Only in exceptional cases does Section 53 (2) VgV regulate the possibility of not requesting offers electronically, namely firstly with reference to Section 41 (2) VgV = “special type of award” or “technical obstacles” and secondly, if at the same time physical or true-to-scale models (samples) are to be submitted. Only in these cases will communication take place by post or other electronic means. The contracting authority must also justify this exception in the award notice.
VK Saxony, decision of November 29, 2019, Az: 1 / SVK / 032-19
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