Exclusion in case of missing signature?
Failure to comply with formal requirements is a recurrent topic in case law. For example, the Higher Regional Court [Oberlandesgericht (OLG)] of Düsseldorf (decision of 5 September 2018, Verg 32/18) was recently asked to consider the question of whether a missing signature necessarily leads to the exclusion of tenders.
The clear result at which the court arrived: Yes!
In the event of increased requirements for the security of the data to be transmitted, the contracting party may impose the increased requirements referenced in § 53 (3) VgV in connection with the submission of tenders (application for participation, exploration of interest and confirmation of interest): In this case, advanced or qualified electronic signatures or advanced or qualified electronic seals may be required.
If relevant formal requirements have been stated, bidder compliance with them is mandatory. If it fails to comply with them, the offer is mandatorily excluded. § 57 (1) VgV stipulates that the explicit list of reasons it provides for the exclusion of tenders is not exhaustive. Rather, § 53 VgV is considered in its entirety, i.e. relative to all the requirements it comprises with respect to formal transmission of tenders and participation requests, etc. Accordingly, exclusion is also mandatory if a bidder fails to meet heightened safety requirements when requested to do so by the contracting authority.
The supplemental request for a missing signature is not considered, as failure to meet this formal requirement does not constitute missing (‘other’) proof (§ 56 (2) VgV). The distinction in the way § 57 (1) VgV is designed already speaks against this: Whereas the reason for exclusion of tenders not received in the appropriate time and form is governed under § 57 (1) No 1 VgV, the absence of required and follow-up documents is covered as an independent case under § 57 (1) No 2 VgV.
The decision is consistently and strictly based on the legislative wording. Once again, this makes it clear how important it is to precisely observe formal requirements for the submission of bids. This also includes the increased security requirements specifically laid down by the contracting authority with regard to electronic signatures. Another sheet states that under § 53 (1) VgV, the formal requirement according to § 126b of the German Civil Code [BGB] is the rule and an electronic signature the exception. Unfortunately, this rule-and-exception relationship often goes overlooked.
by Prof. Dr. Christian-David Wagner, an attorney specialising in procurement law
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