Suitability loan pursuant to §47 VgV
Under § 47 VgV, the law explicitly permits companies – an applicant/bidder or a consortium of applicants/bidders – to demonstrate their suitability by relying on the technical and professional and/or financial and economic capacities of third-party enterprises for purposes of offsetting their own deficits in this regard. This way, new entrants, for example, can also participate in tendering procedures.
A distinction must be made between the suitability loan and ‘mere’ subcontracting arrangements. In the case of ‘mere’ subcontracting, the bidder seeks to transfer just a part or several parts of the contract to third parties for execution. The purpose of involving the third-party company, however, is not to offset all manner of suitability deficits. Hence, a subcontractor can, but does not necessarily need to, be a third party relevant to a finding of suitability – just as, conversely, not every company relevant to a finding of suitability must be a subcontractor.
Within the scope of the suitability test, the contracting authorities then verify not only whether the third parties relevant to a finding of suitability themselves meet the suitability criteria, and whether any criteria for mandatory or optional exclusion apply (§§ 123, 124 ARC [GWB]), but also whether the third-party firm with suitability relevance will actually make the capacities invoked available to the applicant/bidder. For this purpose, the application for participation/tender must be accompanied by a declaration (e.g. a declaration of commitment) that binds the third-party company relevant to the suitability determination to actually provide, without restriction, the bidder with the resources or capacities needed in the event of an award of contract. The decisive point here is that the declaration places the third-party company relevant to the finding of suitability under an obligation from which it cannot readily be released. Declarations of intent or ‘gentlemen’s agreements’ do not satisfy these requirements. On the contrary, the declaration must clearly state that an unhindered right of access to third-party resources in fact exists, i.e. the necessary support is ensured whenever it is needed. (OLG Düsseldorf, 28 March 2018, Verg 42/17)
In other words, for purposes of the suitability test, bidders and the firm(s) on whose capacities they rely are considered as a totality. This totality, considered overall, i.e. in combination, meet all of the requirements that have been set with regard to suitability. In practice, this also means specifically that, when preparing the tender or the application to participate, special attention must be paid to whether verifications of suitability must be submitted by the bidder only, by the company relevant to a finding of suitability, or by both.
by Prof. Dr. Christian-David Wagner, an attorney specialising in procurement law
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