What are the rules for public procurement

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Public procurement law includes all rules and regulations that public institutions must observe when purchasing goods and services. The aim of the regulations is, on the one hand, economic purchasing by the authorities, which should be ensured through competition. Behind this is the economical and appropriate use of taxpayers' money. On the other hand, the aim of public procurement law is the cross-border opening of the procurement markets through transparent and non-discriminatory procedures for all potential applicants (completion of the internal market). In addition to these primary purposes, public procurement law can also be used to pursue political objectives within certain limits (= strategic allocation). These include ecological, socio-political and economic-political aspects.

Public procurement law has become increasingly important in the European Union in recent years. The reason for this is the enormous market power that public buyers have here: the value of public contracts in the member states today amounts to up to 20% of gross domestic product.

The legal system as it is today, with the core provisions of Part 4 of the Law against Restraints of Competition (GWB), the Procurement Ordinance (VgV) and the Sub-Threshold Allocation Ordinance (UVgO) and a division of the procurement law into a nationally regulated and subliminal area anchored in budgetary law and a Procurement law determined by competition law above the EU threshold values ​​has existed in this type in principle since the end of the 1990s.

Public procurement law is based on the five basic principles of competition, transparency, equal treatment, non-discrimination and proportionality.

  • The principle of competition ensures that as many market participants as possible can take part in the award procedure. The greater the competition, the higher the probability that the client will also be offered the best possible quality at low prices. Strengthening competition as much as possible is therefore an indispensable basis for the profitability of public procurement. The principle of competition is reflected in the choice of the type of procedure, in the verifiability of direct awards according to Section 135 GWB, in the assessment of procedural deadlines, in batch awarding, product neutrality, the obligation to secret competition and the prohibition of competition restrictions as well as the introduction of electronic ones Award.

  • The transparency requirement is directly related to the competition requirement. Through the early and sufficient communication of procedural events, it ensures (together with the legal protection options under public procurement law) the principles of equal treatment and non-discrimination. Characteristics of the transparency requirement are the obligation to publish, the obligation to inform the bidders of the award criteria and their weighting, the answering of questions from applicants and bidders as well as the documentation obligation.

  • The principles of equal treatment and non-discrimination (both nationally and in particular at European level) aim to ensure that every market participant has the same opportunities when applying for public contracts. The difference between the two principles is that equal treatment is also possible at a high level of requirements, which may only be met by a small proportion of market participants or, in the worst case, only by a single market participant. Non-discrimination must be guaranteed by setting up the smallest possible access threshold that just meets the requirements of the contracting authority. Equal treatment must then be guaranteed at this level. The result of the two requirements is, for example, the obligation to provide a clear and exhaustive description of services (which all applicants must understand in the same sense), the implementation of testing and evaluation according to the procedural steps listed in the tender documents, the prohibition of changing conditions in the ongoing process, product neutrality , the compensation of information and knowledge advantages as well as the obligation to exclude incomplete or late offers.

  • The proportionality requirement binds the state administration due to the rule of law and the fundamental rights obligation at all levels of administration. All actions - including those in the context of the award procedure - must therefore (1) serve a legitimate purpose, (2) suitable (= at least beneficial) and (3) necessary (= no less drastic means to achieve the purpose possible) and in Weighing of all interests involved (4) must be appropriate (= proportionate in the narrower sense).