"Auslegung und Schicksal des Bieterangebots im Vergabeverfahren" [Basic rules for the interpretation of tenders in public procurement procedures]

Co-author Jens Gerlach

Public procurement law is systematically designed to ensure that tenderers submit a legally binding offer and that the contracting authority accepts such an offer in a legally binding sense. To ensure that the content of tenderers’ legally binding offers is acceptable to the contracting authority, the contracting authority establishes, through the tender specifications, a standard to which the tenders must conform in terms of content. In order to determine whether a tender meets the requirements of the tender specifications, its content must be compared with the tender specifications. At the latest at the time of the decision on the exclusion of tenders and the evaluation of tenders, the contracting authority must therefore be clear about the relevant content of the tender. The content of a declaration of intent is determined by interpretation. In the first part of this article, the standard for the normative interpretation of the tender is set out and the reasons explained as to why a literal interpretation must be ruled out in public procurement law. Subsequently, the article clarifies the influence that certain procedural steps—occurring between the submission of the tender and the decision on its exclusion or evaluation—may have on the content of the tender, namely the clarification of the tender, the request for additional price details and other documents, and the amendment of the specifications by the contracting authority.