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The decision of the Public Procurement Chamber of Lower Saxony dated 21 November 2024 (Ref. VgK-24/2924) underscores the significance of the transparency requirement pursuant to Section 97 (1) GWB and the documentation required under Section 8 VgV in the evaluation of bids.
Criticism of Procurement Practice: Lack of Transparency
The applicant filed a review application against the evaluation of its bid and criticized the procurement practice of the respondent. In particular, the applicant objected to the transparency and comprehensibility of the evaluation by the respondent. The applicant successfully argued that the statement of reasons for its non-consideration required under Section 134 GWB was inadequate and that the documentation of the evaluation was therefore not comprehensible. As a result, the award decision did not meet the requirements of the Federal Court of Justice (BGH). Due to these deficiencies, the applicant lost points that could have placed it first in the overall ranking.
Requirements for the Documentation of Evaluation Criteria
The Public Procurement Chamber found that the evaluation of the concepts was flawed in several respects. According to the Chamber, the use of merely abstract evaluation criteria is permissible, in line with the case law of the Federal Court of Justice, only if their application is made comprehensible through concrete documentation. Furthermore, it was found that the evaluators’ justifications did not meet the requirements for transparent and comprehensible documentation. For example, one evaluator merely copied checklists without adding any personal reasoning, while the other wrote brief texts that were too general and failed to clearly identify the strengths and weaknesses of the concepts. The Chamber emphasized that evaluation decisions must be documented in such a way that it is comprehensible which qualitative characteristics of the bids were taken into account with what weighting in the grading.
Consequences for Procurement Practice and Quality Assurance
Due to the identified deficiencies, the procedure was reverted to the stage after submission of bids and before the start of the evaluation. The respondent was obliged to repeat the evaluation, ensuring that the specific contents of the bids are assessed and not merely abstract criteria cited. The decision highlights the necessity of quality assurance in the evaluation process to ensure procurement procedures are legally secure and fair. Public contracting authorities are thus expressly required to observe the transparency requirement. This includes, in particular, a detailed explanation and comprehensible documentation of why certain points were awarded or not awarded. In practice, this means that errors and lack of transparency in grading can only be avoided through documentation that clearly shows the precise evaluation of the qualitative characteristics of the bids.
