The new procurement law in Schleswig-Holstein

Schleswig-Holstein’s new Public Procurement Act (VGSH) went into effect on 1 April 2019. Supplemental to this, the State Ordinance on the Award of Public Contracts (Schleswig-Holsteinische Vergabeordnung – SHVgVO) was published on 11 April 2019, and with that the reform of state procurement law in Schleswig-Holstein is now complete.

The VGSH replaces the previous Collective Bargaining and Public Procurement Act (TTG) in Schleswig-Holstein and applies to state authorities, district administrations and also to local governments and municipal associations, as well as to all other contracting parties of the state of Schleswig-Holstein according to the interpretation of § 98 ARC [GWB]. Above all, the new VGSH is a lean, user-friendly law designed to take into account the interests of both bidders and public-sector clients. From the bidders’ point of view, it should be emphasised that the flood of proof bidders are required to submit has been limited. Initially, the only suitability-related documents contracting parties may request from bidders are a self-declaration and a disclosure. Proof, and particularly third-party certificates, may only be required from the bidder that has been designated for the award of contract. The interests of public-sector clients, in turn, are satisfied that social, equal-opportunity and environmental aspects can be factored in, but this factoring-in is not mandatory. The new VOB/A that went into effect on 31 January 2019 was also declared binding under the new public-procurement regulation.

Furthermore, it should be emphasised that under § 5 VGHS in conjunction with § 5 SHVgVO, the lower-threshold range, from a contract value of EUR 50,000, now also includes a prior-information obligation for contracting parties. With regard to the value limits, under the UVgO, the negotiation award and restricted tenders without participation competitions are only permissible up to a projected contract value of EUR 100,000. In addition, restricted tenders without a public participation competition are permissible for each specialist lot up to an individual contract value of EUR 100,000 and the direct award is permissible both up to a contract value of EUR 100,000 and for each specialist lot with an individual contract value of up to EUR 50,000.
The changes in Schleswig-Holstein can be summarised as follows: With the new VGSH, the state legislature is pursuing a pragmatic and, above all, practice-oriented approach of the kind that would be all too desirable in other state regulations as well.