Comparability of references
Contracting parties are not the only ones with an interest in ensuring that contracts are placed only with companies that are actually sufficiently suitable for the purpose, i.e. have the necessary expertise and professional experience (§ 46 VgV). Competitors also have an interest in ensuring that a uniform level of suitability is applied that will ensure that tenders submitted are comparable to one another.
In this respect, it is impossible to overstate the importance of references in tendering practice. This is because only the submission of ‘comparable’ references can aid contracting parties in assessing whether bidder firms already have the suitable level of experience. However, it is often not sufficiently known when this kind of ‘comparability’ can safely be assumed.
In any case, it is clear that comparability is not synonymous with ‘identical to the service put out to tender’. If the contracting party wants to ensure that companies have already successfully performed the service to be contracted in the past, it must also indicate as much by laying down (minimum) specifications. If it fails to do so, it is sufficient if the references the company has submitted resemble the tendered service quantitatively and qualitatively enough to permit a conclusion that the company in question will also be able to perform that service in accordance with the contract (e.g. OLG München, 27 July 2018, Verg 2/18).
The decisive factor will be the information on the subject matter of the contract provided in the announcement or in the tender documents. The more vague the information on the subject matter of the contract, the broader the scope within which comparability can/must be assumed. Ultimately, then, the facts of the individual case are decisive.
This ensures that the selection of comparable references will remain a challenging task for bidders. This is true particularly in the framework of participation competitions in which perhaps not all of documents about the service itself have been finalised. If there are doubts in this respect, companies are well advised to ask a bidder question. In this context, the bidders themselves are advised to define what they consider ‘comparable’ in regard to the specific tender documents.
The following applies to contracting parties: If concrete empirical values or the like matter, then clearly comprehensible specifications for the comparability of references must be issued to effectively address any lack of clarity in the first place.
by Prof. Dr. Christian-David Wagner, an attorney specialising in procurement law