Public Procurement

Finally, there is a new legal opinion, which takes into account and takes due account of changes in the law at EU and federal level. The report draws attention to the reform of the German Public Procurement Act, which entered into force on 18 April 2016. This has been implemented by the EU directive on the award of 2014.

Key findings of the report:

1. It can be social and environmental aspects in the award of public contracts without issues to consider: This can also be done at different levels:
   • As a performance description, e.g. social innovations (see 34) [it is pointed out in the Opinion that there are alternative legal interpretations on this point]
   • As a softer supplementary criterion (s. 34)
   • As an implementation condition, e.g. to sanction non-compliance (s. 34)
2. It follows that it is not necessary to accept self-explanations. On the contrary, proof of an independent third party may be explicitly required.
3. Specifically, a specific quality mark is allowed to be required as proof if the public procurement body accepts all requirements of this quality mark.
4. The federal states can obligate the public procurement bodies to demand certain social standards, but only at the level of the performance description and the implementation condition (S. 37f.)

It is very gratifying that, with Dr. Krönke’s report, a new reading of the legal room to manoeuvre for public procurement is finally to be found!

Please refer: Rechtsgutachten von Dr. Christoph Krönke

On 1 July 2016, the Federal Government awarded the Federal Law on Procurement to the new federal law of the federal government which came into effect in April. A draft law of the Ministry of Economic Affairs was passed on 7 June by the Lower Saxony Landtag.

The decisive passages are:
“(1) When awarding supply, works or services is to work out that the scope of paragraph no goods are the subject of performance, obtained or produced the set in disregard of the core labor standards of the International Labour Organisation (ILO) minimum requirements are. […]
(2) The governing body shall determine by regulation the product groups or manufacturing procedures to be applied to paragraph 1 and the minimum content of the contractual provisions referred to in the first sentence of paragraph 1. The Regulation shall apply to certifications and verifications, as well as the contractual arrangements for checks and contractual penalties. ”

Please refer: Niedersächsisches Tariftreue- und Vergabegesetz – NTVergG
Please refer: Niedersächsische Kernarbeitsnormenverordnung – NKernVO
Please refer: Erklärung über die Vorlage von Nachweisen
Please refer: Servicestelle zum Niedersächsischen Tariftreue- und Vergabegesetz

On April 18, 2016 Reform of public procurement law entered into force (law and Directive). For contracts above the so-called EU threshold, the award was simplified and modernized. This applies in particular to the consideration of social aspects: “The possibilities for contracting authorities to set strategic objectives – eg environmental, social or innovative aspects – in the framework of procurement procedures are strengthened.”

This means that the Federal Government is implementing three EU directives for the award of 2014, including the Public Procurement Directive (Directive 2014/24/EU).

Please refer: Gesetz zur Modernisierung des Vergaberechts
Please refer: Verordnung zur Modernisierung des Vergaberechts
Please refer: Reform des Vergaberechts