Does the prequalification check affect creditworthiness

VERIS - decisions of the public procurement chambers Hessen VK Hessen 2014

VK Hessen, decision of February 24, 2014, 69 d VK - 05/2014
Weighing of interests, award of contract, approval, prospects of success, creditworthiness information
1. In the case of large-scale events with a significant broad impact, the interests of the general public in a safe and orderly course of the event must take precedence over the applicant's interests, as part of the balancing of interests in accordance with Section 115 (2) sentence 1 GWB, to wait until the end of the review process for the order to be placed, to be granted if the general interest would be significantly impaired by a delayed award of the contract. The larger an event, the more complex the need and requirements for security and order; According to general life experience, this requires a corresponding expenditure of time in planning, preparation and organization in advance of the event.
2. When considering the prospect of the applicant in the award procedure of receiving the contract, as required by Section 115 (2) sentence 3 GWB, its placement and chance of being awarded the contract are important indicators.
3. The chances of success of the request for review may be the object of the weighing of interests (Section 115 (2) sentence 4 GWB). If they are taken into account, they are an important indicator for the decision on the application in accordance with Section 115 (2) sentence 1 GWB.
4. Information from credit agencies on creditworthiness and the credit rating represent value judgments. A “very poor creditworthiness” stated by the credit agency does not in itself lead to a denial of suitability; in particular, based on this assessment, it is not necessarily to be expected that the applicant will not perform the service and will not carry out the order properly.
In the review process
has the 1st procurement chamber of the State of Hesse at the Darmstadt regional council through the chairman of the government director Harnisch, the full-time assessor for construction director Zwach and the honorary assessor of the government councilor Wentz without an oral hearing
decided on February 24, 2014:
1. The respondent is permitted to award the contract in the "Guard, security and cashier service on the occasion of XXX" award procedure two weeks after the announcement of this decision.
2. The decision is made free of charge.
The respondent and awarding authority wrote in the contract announcement of August 22, 2013 the award of the contract for guarding, security and cashier services at XXX in the open procedure according to VOL / A from XXX. The event will take place from XX.XX.XXXX to XX.XX.XXXX.
It is the oldest and largest national festival in Germany; Since 2009, the number of visitors has reached or exceeded the million mark every year, most recently in 2013 around 1.83 million visitors.
In a letter dated September 2, 2013, the respondent requested the submission of an offer for the first time.
On November 13, 2013, it canceled the award procedure.
In a letter dated November 12, 2013, she again requested the applicant to submit an offer. The documents attached to the request for offer contained a pre-formulated version of a letter of offer (form 633), the special contractual conditions (form 634) and the self-declaration for non-prequalified companies (form 124). In the self-declaration and partly also in the offer letter, the submission of declarations on insolvency proceedings and liquidation as well as the payment of taxes, duties and contributions to the statutory social security was provided. In the special contractual conditions, the obligation to provide security for the fulfillment of the contract in the form of a bank guarantee was provided in accordance with section 6.2.
On November 18, 2014, the defendant communicated the award criteria by e-mail, according to which the price of the offers was weighted with 60% and the service and training concept with 40%.
The applicant submitted its offer by letter dated November 26, 2013. In addition, two other bidders submitted their offers.
A presentation took place on December 16, 2013, in which all bidders presented their services for XXX in particular.
In a letter dated January 17, 2014, the respondent informed the applicant that she would not consider her offer. The applicant received the letter on January 23, 2014.
In a letter dated January 24, 2014, the applicant complained that this letter did not meet the requirements of Section 101a (1) GWB.
The respondent helped with a letter dated January 29, 2014.
On January 30, 2014, the applicant filed a further complaint. Submitting the information provided by the credit agency XXX on the same day, it said that the bidder to be awarded was unsuitable because it was economically ineffective. With reference to the competent court, the information contained a reference to non-disclosure of the asset information dated August 23, 2013.
In a letter dated February 3, 2014, the defendant did not remedy the complaint.
As a precaution, she filed a protective letter with the public procurement tribunal on the same day. The protective letter was received there that day.
In it she requested
1. to reject any request for review because it is obviously unfounded,
2. not to submit a possible review request due to obvious unfoundedness and not to issue the ban on award.
As a justification, she essentially stated that she had complied with the provisions on the award procedure and, in particular, with the aptitude test, her discretion. The information provided by the credit agency is not able to refute the result of this examination.
In a pleading dated February 6, 2014, the applicant submitted her review contract, which was received by the public procurement tribunal on the same day.
In it, it essentially requests, among other things,
1. to instruct the respondent to stop the award procedure immediately,
2. to give it up to decide again without any discretionary error about the suitability of the bidder envisaged for the award of the contract.
As a justification, she essentially gave the reasons put forward in her further, unsettled complaint.
By order of February 7, 2014 - delivered on the same day - the public procurement tribunal, taking into account the defendant's protective letter, granted her a legal hearing and asked her to submit the award file by February 14, 2014.
At the same time, the applicant was given the opportunity to comment on the protective letter within a certain period of time.
With a pleading dated February 11, 2014, she submitted further information dated February 7, 2014. In it, under the heading “Negative features”, the information from the first information was supplemented as follows: “Failure to submit asset information to the local court.
The respondent replied to the request for review in a written statement dated the same day.
It requests, among other things,
reject the request for review.
She essentially justified this with the lecture she had already given.
At the same time, in a separate brief, it applies for permission to accept the bid two weeks after the announcement of the decision on this application.
In support of this, she submitted that, on the one hand, the request for review had no prospect of success because it was not well founded. Second, the interests of the general public in a quick award decision would outweigh the applicant's interest in waiting for this decision until the end of the review procedure. Since the contract to be awarded is subject to a deadline, the services to be provided should be included in the planning and organization of the event at an early stage. In particular, the security concept will be drawn up and continuously coordinated with all relevant institutions, such as the police, from January 2014; this requires the participation of the bidder to be awarded in order to guarantee the implementation of the event.
With a ruling dated February 13, 2014, the public procurement tribunal granted the applicant the right to be heard on the application for approval of the early award.
On February 17, 2014, the respondent made her award files available to the public procurement tribunal.
At the request of the public procurement tribunal, the next day she submitted the original offers of the bidders.
In a letter dated the same day, she also submitted the clearance certificate from XXX, a guarantee from XXX and a confirmation from XXX. This confirmed that the social security contributions are being paid and that current payment obligations towards the tax office are being met; The guarantee declaration guarantees that the services offered will be carried out in accordance with the contract up to a total amount of € XXX.
At the same time, the applicant submitted a written statement, among other things, on the application for early approval of the award. She opposed this, since the defendant would not have fully ascertained the facts on which her award decision was based due to a lack of verification of verbal information. In addition, the basis of their prognosis decision on the performance of the bidder to be awarded is not apparent.
The application for approval of the early award is admissible and justified.
1. The application is admissible in accordance with Section 115 (2) sentence 1 GWB, since it was submitted through formal delivery and a ban on surcharges was triggered, which has been in force since then.
2. He is also successful in the matter.
Pursuant to Section 115 (2) sentence 1 GWB, the public procurement tribunal can, upon request, grant the contracting authority two weeks after the announcement of this decision, provided that all possible harmed interests and the general public's interest in a rapid conclusion of the procurement procedure are taken into account the adverse consequences of delaying the award of the contract until the review is completed outweigh the associated benefits. With regard to the possibly harmed interests, those of the applicant as well as those of the respondent must be taken into account (Kulartz / Kus / Portz-Kus, GWB, 3rd edition 2014, § 115 marginal number 54). When weighing interests, the general prospects of the applicant in the award procedure of receiving the contract must also be taken into account in accordance with Section 115 (2) sentence 3 GWB. Pursuant to section 115 (2) sentence 4 GWB, the prospects for success of the review request need not be the subject of the weighing up, but they may (Opitz, NZBau 2005, 213; Ziekow / Völlink-Herrmann, Veraberecht, 1st edition 2011, section 115 GWB marginal no 13; Kulartz / Kus / Portz-Kus, loc. Cit., Section 115 GWB marginal number 52).
Basically, the balancing of interests is to be carried out restrictively because of the primary protection of the applicant, since an early granting of a surcharge may only be made in special exceptional cases (Weyand, ibr-online, procurement law, 4th edition, as of December 16, 2013, § 115 GWB marginal no. 31/2 , 32, 37; Bechtold-Otting, GWB, 6th edition 2010, § 115 marginal number 8). This is the case if there is an urgent interest that clearly exceeds the interest in a proper implementation of the review procedure (Weyand, loc. Cit., § 115 GWB marginal no. 37; Ziekow / Völlink-Herrmann, op. Cit., § 115 marginal no. 12).
An urgent and weighty interest is given in the event of consequences for the general public that would adversely affect them if the award of the contract were to be delayed, such as in particular threats to public safety and order (Opitz, NZBau 2005, 213; see Kulartz / Kus / Portz-Kus, loc. cit., § 115 Rn 59 [aE]). Consequences for the general public are regularly of greater importance (Opitz, NZBau 2005, 213).
Here, the security and order of a major public event, which are the basis of the subject matter of the contract, had to be compared and weighted with the delay in the award of the award resulting from the submission of the request for review.
When the award is delayed, not only the scope, but also the length of the execution time as well as the timing of the client with regard to procurement and legal protection procedures are important, whereby the latter does not take into account any self-induced urgency in the context of the balancing of interests to the detriment of the client (Ziekow / Völlink-Herrmann, loc. Cit., § 115 GWB marginal number 19; Kulartz / Kus / Portz-Kus, loc. Cit., § 115 marginal number 64).
Such a “home-made time constraint” is not evident here, as the application for early allowance was made well in advance of the event. Nor can it - as has been recognized (Müller-Wrede-Kadenbach, GWB, 2nd ed. 2014, § 115 Rn. 21; Ziekow / Völlink-Herrmann, loc. Cit., § 115 GWB Rn. 27; see VK Hessen, decision. v. April 27, 2009 - Ref .: 69d VK-10/2009 -) - the speech should be that the event is imminent. Because even if one were to assume a maximum of seven weeks for the period between the permitted award of the contract and the regular conclusion of the procurement chamber procedure, a period of at least as long would remain until the start of the event. Likewise, the two-week execution time of the event is less decisive for the time circumstances relevant to the weighing up, but rather its character and size.
The XXX is a major event of national, therefore supra-regional importance. It is characterized by a high number of visitors, which has increased significantly in recent years. Since the venue this year is between the XXX, the same number of visitors as in the previous year - approx. 1.8 million people - can be expected. Another characteristic is the heterogeneous composition of the visitors, according to experience: They come from all social and age groups, which also corresponds to the orientation of the event. As in previous years, it can also be assumed for 2014 that it will be visited by children, adolescents, adults and seniors.
In the case of large-scale events with - as here - a considerable widespread impact, the general interest in a safe and orderly course of the event is given priority over the applicant's interest if the general interest would be significantly impaired by delayed award of the contract (VK Hessen, decision of April 27, 2009 - Ref .: 69d VK- 10/2009 -; Weyand, loc. Cit., § 115 GWB marginal no. 73, 74, cf. marginal no. 70; Müller-Wrede-Kadenbach, GWB, op. Cit., § 115 marginal no. 21; Ziekow / Völlink -Herrmann, loc. Cit., § 115 GWB marginal number 27).
This is also the case in the present case.
Even after the awarding chamber procedure has been concluded, there would still be several weeks before the start of the event, but it is questionable whether these are sufficient for planning and preparing all necessary security measures. The public procurement tribunal assumes that the larger an event, the more complex the need and requirements for security and order. According to general life experience, this requires a corresponding amount of time in the run-up to the event. Accordingly, more time in planning, preparation and organization also benefits more security and order when carrying out the event. It is to be expected that the more time is given in preparation, the more careful the planning is, the smoother and safer the event will run. A shortened period of time - due to a delay in the award of the contract - is detrimental to the care in planning and preparation, which is, however, equally urgent, especially for major events and security issues. Because the object of the safety precautions at such events is the protection of life, body and health as well as property of people, thus high-quality immaterial and material legal interests. Their protection - namely that of the numerous groups of visitors just mentioned - is more important and justifies the approval of the surcharge.
In contrast, the applicant's interest in waiting for the award of the contract until the review process has been concluded is of secondary importance.
The early approval of the award is also in line with the interests of the applicant because the applicant has no realistic prospect of being awarded the award (Section 115 (2) sentence 3 GWB).
It is recognized that the position and the chance of the bidder submitting the application to be awarded the contract are important indicators for this (Müller-Wrede-Kadenbach, loc. Cit., § 115 Rn. 24; Kulartz / Kus / Portz-Kus, loc. Cit .; § 115 Rn. 52; Weyand, loc. Cit., § 115 marginal number 86).
The award file shows that the placement and chances speak against an award to the applicant. According to the note on the evaluation dated December 16, 2014 (pages 238 to 239 of the award file), the applicant was placed as the third, i.e. last, of the three bidders who had submitted an offer. In terms of the award criteria, she is too far ahead of those placed in front of the competition for her to be able to reach first place.With a view to the award criterion “price”, it submitted the most expensive offer; the difference to the other two offers is tens of thousands of euros each. With regard to the award criterion “service and training concept”, it received half as many points in the evaluation as the second-placed bidder; it received less than half of the total points to be achieved, which, however, was achieved by the first-placed bidder with the highest number of points.
Accordingly, she would not get the first rank even if the current holder of rank 1 were to cease to exist.
As a result, she has no prospect of being awarded a contract.
Finally, the fact that the applicant has no prospects of success in the review procedure (Section 115 (2) sentence 4 GWB) speaks in favor of the fairness of interests of the early approval of the award.
The prognosis about the chances of success of the request for review is to be made on the basis of a summary examination of the current state of affairs and dispute (VK Hessen, decision of April 27, 2009 - Ref .: 69d VK-10/2009 -; Ziekow / Völlink-Herrmann, loc. cit., § 115 GWB marginal number 28). These chances of success are an important indicator for the decision on the application for early approval of the award (Ziekow / Völlink-Herrmann, loc. Cit., § 115 GWB marg. 28 [aE]; Kulartz / Kus / Portz-Kus, op ).
After a summary review, the admissibility of the request for review is likely to be lacking, since the application authorization within the meaning of Section 107 (2) GWB must be denied due to the above statements on the placement of the applicant due to the lack of damage to her detriment. It is true that even in the case of offers that have been placed hopelessly, it is necessary to check whether award errors are reported which, if eliminated, no longer appear to give a realistic chance of winning (Bechtold-Otting, loc.cit., Section 107 marginal number 6). But here - as stated - the large distance to the pre-placed bidders destroys any prospect of winning.
The summary examination also showed that the request for review is likely to be unfounded.
A violation of the procurement regulations due to errors in the suitability test according to § 19 EG Paragraph 5 VOL / A is not evident. The defendant's examination of the ability to perform financially and economically in accordance with Section 7 EC Paragraph 2 VOL / A is not objectionable.
There are no indications that she has exceeded the legal limits of the scope of assessment to which she is entitled during the aptitude test, which can only be checked to a limited extent by review bodies. They only have to examine whether the prescribed procedure for the aptitude test has been complied with, the facts have been fully and accurately determined, the self-made requirements have been observed and no considerations that are inappropriate or contrary to general assessment principles have been made (VK Hessen, decision of June 27, 2012 - Ref .: 69d VK-21/2012 -).
No errors could be found in this regard.
In particular, the ascertainment of the facts and the considerations made are not subject to any reservations. The respondent has received the declarations required under Section 6 of the offer letter (Form 633) and the self-declaration for non-prequalified companies (Form 124) from the bidder to be awarded and has taken them into account - insofar as this is already necessary and possible.
In particular, the letter from XXX confirmed that the obligation to pay taxes and duties as well as contributions to statutory social security had been met. The opposite cannot be found in these documents.
Nothing else results from the guarantee declaration of February 12, 2014. According to this, the respondent will be provided with security for the contractual execution of the offered service up to a total amount of XXX €. The fact that Form 421 was used for this is not harmful, as it depends on the content of the declaration. It is also harmless that it is not a bank guarantee. This is requested in accordance with Section 6.2 of Form 634 - using Form 421 - but only when the contract is concluded. This already follows from the fact that Form 634 is special contractual conditions which, according to letter B of the invitation to submit an offer (Form 631), are yet to become part of the contract. Therefore, the submission of a bank guarantee cannot be requested during the procurement process. There are currently no indications that the later required bank guarantee would not be provided.
This means that sufficient documents have been submitted to prove financial and economic capacity.
The information provided by the credit agency XXX does not conflict with this. The notes on creditworthiness and credit rating contained therein represent value judgments made by the credit agency alone. One can certainly attribute an indicative effect to them, but it is unclear to what extent they actually provide reliable information (Müller-Wrede, VOL / A, 4th ed. 2014, § 7 EG Rn. 52; see Weyand, op. Cit., § 7 EG VOL / A Rn. 12, 13 in conjunction with § 6 VOL / A Rn. 125). They are therefore not available for review. In addition, it is recognized that a “very poor credit rating” given by the credit agency does not in itself lead to a denial of suitability; in particular, based on this assessment, it is not necessarily to be expected that the applicant will not fulfill the service and will not carry out the order properly (VK Bund, decision of September 27, 2002 - Az .: VK 163 / 02-; Weyand, loc. cit., § 6 VOL / A Rn. 125).
Even the references to non-submission of the asset information, which are further headed with “negative features”, do not negate the performance without further ado. Because these are entries in the debtor register at the court according to § 882c ZPO. It is true that - and this is also to be assumed here - there must be a reason for entry in accordance with Section 882c (1) No. 1 ZPO, namely a breach of the obligation to provide financial information. However, it follows from Section 802c of the German Code of Civil Procedure that this obligation serves for enforcement. Accordingly, the entry in the debtor register is relevant for foreclosure. This alone does not refute the performance (see Müller-Wrede, loc. Cit., § 7 EG Rn. 52) - especially since the guarantee of February 12, 2014 already provided ensures the contractual performance.
After all of this, the application for approval of the early award had to be granted.
The decision on costs is reserved for the main proceedings.
Against this decision of the public procurement tribunal, an application to restore the ban on awarding the contract is admissible. He is with the appellate court
Higher Regional Court of Frankfurt am Main,
- Allocation Senate -
Zeil 42, 60256 Frankfurt am Main
to deliver. The application must be made in writing and justified at the same time. The facts to be presented to justify the application as well as the reason for the urgency must be made credible.
When the application is submitted, the other parties involved in the procedure before the public procurement tribunal must be informed by the applicant by submitting a copy of the application.
VK Hessen, February 24, 2014, 69 d VK - 05/2014