Sector ordinance an e-tendering
When the German Contracting Portal (DTVP) addresses e-tendering, the advice provided always relates to corresponding contracting regulations such as the VgV or UVgO for supplies and services. But what rules govern sectoral contracting authorities? The following article is essentially intended to briefly illuminate the differences and special features that exist within the framework of the SektVO.
The basic obligation to carry out electronic tendering procedures, now enshrined in § 97 (5) GWB, is not confined to individual procurement-law regimes and essentially covers all areas instead.
Accordingly, the Sectoral Ordinance [SektVO] also contains requirements for the fundamentally mandatory use of electronic means of communication (§§ 9 et seqq. SektVO). Specifically, the announcement must also be transmitted electronically (§ 40 SektVO – although announcements of order changes are not covered by this rule under SektVO). Tender documents must also be made available electronically (§ 41 SektVO). All tenders and applications to participate, etc., must also be submitted electronically (§§ 43, 44 SektVO). The regulations governing e-tendering went into full effect in October of last year (§ 64 SektVO).
Most of the provisions of the SektVO for e-procurement therefore correspond to those found in the VgV. Differences relate, on the one hand, to special features found that run through the SektVO as a whole. Thus, for example, the ‘regularly non-binding announcement’ (§ 36 SektVO) takes the place of preliminary information under VgV (§ 41 (1) SektVO).
In addition to the objects of announcements under VgV, SektVO also includes the ‘announcement of the existence of qualification systems’. A special feature of § 41 (2) SektVO in this regard is that, if certain conditions are met, the date of electronic provision of a tender document can be postponed until not later than the date of dispatch of the invitation to tender or the invitation to negotiate.
Another special feature of the Sectoral Ordinance occurs in § 30 SektVO: Independently and separate from concrete tendering procedures, interested companies (upon application) are granted (always electronic) access to the technical requirements regularly used by the sectoral contracting authority – within the meaning of §§ 28, 29 SektVO/§§ 31, 32 VgV. This special feature exists in light of the fact that technical specifications such as these are often used in sectoral tendering procedures. This gives bidder companies (not least foreign bidders and newcomers) access to what are often extensive sets of rules to which they might not otherwise have ready access.
In addition to the ‘classic’ contracting authorities, the use of e-tendering is mandatory for sectoral contracting authorities as well. This includes almost all municipal companies, such as municipal utilities, waste-disposal and transport companies. Of course, the types of procedure involved under the Sectoral Ordinance (SektVO) are also shown in the German Contracting Portal. Thus, in addition to the usual tender types for the many public contracting authorities such as state authorities and municipalities as well as health insurers and universities, tenders can also be conducted electronically in accordance with the SektVO. Many such sectoral contracting authorities are long-standing customers of DTVP. Upon request, the Product Consulting Team will be happy to compile a list of the references relevant to you.
by Prof. Dr. Christian-David Wagner, an attorney specialising in procurement law
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