| When evaluating the offers, a client is entitled to a scope of assessment that can only be checked to a limited extent. He also does not have to inform the bidders in detail (e.g. using a scoring guide) before submitting a bid about which aspect he will “reward” with how many points. However, he must state what (presentation, concept, other written statements by the bidders or similar) he will base his evaluation decision on, according to the VK Bund. |
The specific case
In the specific case, it was about engineering services according to Part 4 Section 2 HOAI (conveyor systems). After a successful participation competition, several offices were asked to submit bids.
Letter of invitation to tender
In the “letter of request” that was sent to the bidders together with the tender documents, reference was made to contract talks, among other things. With their help, the bidder was to be determined who, with regard to the task at hand, is most likely to offer the guarantee of an appropriate and high-quality service. During the interview, the designated project site manager should introduce himself and his team and present the qualifications based on reference objects (max. 3 reference objects, max. 30 minutes). A total of about 45 minutes of talks was planned. (…)”
The award criteria
In the attached “task description” under point 3, the following award criteria were named with weighting
- 45% Qualification and experience of the personnel entrusted with the execution of the order as well as their workload and availability
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- Expected performance and approach to the task based on the presentation of a reference object
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- Methods of deadline control/cost control
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- Quality assurance methods
- 15% fee: The offer with the lowest checked fee amount receives the highest number of points. An offer with twice the lowest fee amount receives zero points. The scoring for the prizes in between is based on linear interpolation.
- 10% familiarity with BIM
The score sheets
After the presentation, two employees of the authority created an “evaluation sheet” for each bidder, in which they handwritten a few brief key points about their impression for each of the four award criteria and awarded evaluation points. In addition, the award file contained more detailed explanations on the evaluation of the offers in the individual award criteria (in file form). In the case of the second-placed bidder, the individual evaluation results in file form partially deviated from the results in the handwritten evaluation sheets. The award file did not contain any further explanations.
Application for review is successful
The bidder submitted an application for review and was successful. The authority had not clearly informed the bidders on what basis it would base its bid evaluation. Consequently, the offers are not comparable with each other. In addition, the authority did not adequately document its assessment decision. The bidder’s rights were violated as a result of these procurement law violations (VK Bund, decision of December 16, 2022, file no. VK 1-99/22 retrieval no. 234358).
Scoring decision was not transparent enough
A contracting authority is entitled to a certain amount of discretion when evaluating the offers, which can only be checked to a limited extent by the review bodies. In addition, a client does not have to inform the bidder in detail (e.g. using an evaluation guide) before submitting a bid about which aspect or circumstance he will “reward” with how many evaluation points, for example
Prior to the concrete evaluation, however, is the question of the basis on which the offers should be compared with one another in order to be able to select the most economical one. The more open the advertised specifications are for the bidders and the rougher the evaluation specifications of the client to its evaluation committee, the greater the risk that the uniformity of the evaluation and thus the equal treatment of the bidders as well as the transparency of the evaluation decision of a public client is not sufficiently guaranteed . A contracting authority is therefore obliged to inform the bidders of its approach to the evaluation so clearly that they know what the contracting authority expects of them and what their evaluation will be based on.
The client had not adequately met these requirements. Because what it has communicated to the bidders with regard to the valuation bases it envisages and its valuation process is not clear from the relevant objective point of view of an experienced bidder familiar with the tender. The evaluation sheets in the tender file and the statements made by the respondent in the review procedure indicate that the respondent only wanted to evaluate the verbal statements made by the bidders in the bid presentation. In contrast, there is no clear picture in this regard from the tender documents, on the basis of which the bidders prepared their offers – in part, at least for some of the three qualitative award criteria, reference is made to the evaluation of a presentation, but in part it is pointed out that at least the written statements of a bidder should be relevant to the valuation:
Job description is not enough
The EU notice did not (unproblematically) lay down anything about the procedure for evaluating the offers.
- The tender documents contained, among other things, the “task description”, which in turn contained the four award criteria under item 3 (page 4).
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- “Qualification and experience of the personnel entrusted with the execution of the order as well as their workload and availability”, “
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- “Experience in the application of the planning method BIM”.
- What the Respondent wanted to evaluate based on these criteria (presentation, written statements by the bidders, etc.) could not be inferred from the task description. Only with regard to the criterion “Project management” was it mentioned in a sub-item that the expected performance and approach to the task set should be evaluated “based on the presentation of a reference object”. From the objective point of view of a competent, experienced bidder, this should be understood in such a way that a presentation should only be relevant to the criterion “project execution”.
- In the “letter of request” the recipients were informed that they had been “selected for contract talks” and that “these contract talks” served to determine the bidder who offered the best guarantee of a proper and high-quality service, i.e. should be awarded the contract. This general formulation can be understood in such a way that all award criteria should be dealt with in the order discussion. The assessment-relevant basis for all criteria would therefore be the presentation that takes place in this interview. However, the content of this presentation discussion will be narrowed down later in this letter.
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- The intended project manager should “introduce himself and his team in this interview and … present his qualifications for the task on the basis of reference projects (maximum 3 reference objects, maximum 30 minutes)”. In contrast to what is laid down in the task description, according to the letter of request, a maximum of 30 of the 45 minutes of the job interview should be used to introduce the project manager and his team, and the project manager should only present his qualifications during this period using a maximum of 3 reference objects. From the objective perspective of the recipient, these explanations relate to the first award criterion, which includes the qualifications and experience of the personnel carrying out the order. A part of this award criterion, namely the qualification of the project manager (and not also of the other personnel entrusted with the execution of the order in the sense of the award criterion) should therefore be evaluated on the basis of the presentation mentioned. Regarding the content of the remaining 15 minutes of this conversation, i.e. the last third of this meeting, as well as the type of evaluation of the other qualitative award criteria and on which basis the qualifications and experience of the other personnel, which are also relevant according to these criteria, are to be included in the evaluation (in writing, also as part of a presentation in an order meeting, anything else?), the prompt disc contains nothing.
- The offer letter, which was also sent to the bidders with the letter of formal notice and which they should fill out and submit to the respondent with their offer, conveys a different picture of the planned procedure for the qualitative evaluation of the offers. Here are some
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- provide individual information about the project manager and the other employees planned in the project team (name, job title/qualification, length of office tenure and professional experience), personal references of the project manager,
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- the internal methods of deadline and cost control and quality assurance are to be named,
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- it must also be stated how the construction supervision (on-site presence) is to be ensured.
- Objectively speaking, all three qualitative award criteria have been addressed in this form, namely firstly the qualification and experience of the staff (whereby only the project manager is asked to provide specific references, at least for the BIM planning method, and for the other employees only the length of professional experience and office affiliation in years) , secondly the aspects relevant to evaluation within the framework of the “project management” criterion “methods of deadline control/cost control”, “methods of quality assurance” and “on-site presence” and thirdly the award criterion “experience in the application of the BIM planning method” (although only on the basis of reference orders from the project manager, i.e. not the rest of the project team provided by the bidder). From the objective perspective of the recipient, this letter is to be understood in such a way that the aspects relevant to the award criteria are to be evaluated on the basis of the information provided in this letter – otherwise it would be pointless to require bidders to make entries in this form.
“It is therefore not clear from each of the above letters and forms how the client will proceed with the evaluation … In the absence of sufficiently clear evaluation specifications, the offers cannot be compared with one another, so that there is no arbitrary competition based on the award criteria in an effective competition the most economical offer can be determined (VK Bund, decision of December 16, 2022, Az. VK 1-99/22 retrieval no. 234358).
Nextleading note
- Article “VgV reform: Will 10,000 more planning contracts be put out to tender throughout the EU in the future?”, pbp.iww.de → access no. 49231696