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By its judgment of 10 April 2025 (Case No. 3 A 1671/20), the Administrative Court of Schwerin confirmed that it is contrary to procurement law to add the phrase “or equivalent” in cases of uncertainty regarding the substantive justification for product-specific requirements.
Background: Promotion and Procurement Law Requirements
The defendant authority granted the plaintiff municipality a non-repayable subsidy for the expansion of a road within its municipal area. This funding was subject to the condition that tenders be conducted in a product-neutral manner and that the provisions of procurement law be observed. The defendant subsequently determined that the plaintiff had issued manufacturer- and product-specific tenders and, moreover, had included the phrase “or equivalent” in the relevant items of performance. The defendant then partially revoked the subsidy due to violations of Section 7 (2) VOB/A and demanded repayment of €9,049.14. The plaintiff lodged an unsuccessful objection, arguing that the defendant had created a legitimate expectation by not responding to a submitted bill of quantities.
Decision of the Administrative Court
During the proceedings, the defendant further stated that the plaintiff had also used outdated forms, made contradictory statements in the notice, and completed the record incorrectly. The Administrative Court of Schwerin dismissed the action and confirmed the lawfulness of the partial revocation notice. A partial revocation was permissible under Section 49 (3) sentence 1 no. 2 VwVfG M-V, as the plaintiff had not complied with the conditions. Contrary to Section 7 (2) VOB/A, the plaintiff had issued a product-specific tender, although the requirements for an exception to the principle of product-neutral procurement were not met.
Clear Separation of Alternatives under Section 7 (2) VOB/A
The Administrative Court made it clear: Even if a product-specific tender is not objectionable in a particular case, the opening clause “or equivalent” may not be used in addition. This is because either a product-specific tender is issued pursuant to Section 7 (2) no. 1 VOB/A because the subject matter of the contract justifies it, or the addition “or equivalent” is used pursuant to Section 7 (2) no. 2 VOB/A because the service cannot be described with sufficient precision and in a generally comprehensible manner.
Conclusion: Care in the Preparation of Procurement Documents
Further procurement law requirements were also not met, for example by using outdated forms. Since the provisions for public procurement were violated several times, the Administrative Court of Schwerin considered that the defendant had no discretion in its decision. The budgetary principles of efficiency and economy, which are anchored in Union law, result in a mandatory exercise of discretion, which is why the defendant was obliged to partially withdraw the funding. When preparing and publishing procurement documents, it is therefore essential to pay close attention and distinguish which alternative of Section 7 (2) VOB/A applies. Errors can have not only legal consequences but also lead to financial recoveries.
