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Serie Procurement 2017

One year following the entry into force of the modernisation of procurement law on 18 April 2016 German procurement law has been amended once again. The provisions regarding the procurements in the range below the threshold value are concerned. The Federal Ministries responsible for procurement law, the German Federal Ministry for Economic Affairs and Energy (BMWi) and the German Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety (BMUB), had announced last year already that after completion of the reform of the range above the threshold value this range would be addressed next.

The focus of the present reform lies on the procedural rules for the award of public supply and service contracts below the EU threshold values, the Rules of Procedure for the Awarding of Below-Threshold Contracts (Unterschwellenvergabeordnung, UVgO). It will replace the first paragraph of the German Procurement and Contract Procedures for Supplies and Services (VOL/A). The UVgO shall, however, not become immediately effective upon its publication in the Federal Gazette on 7 February 2017. In Germany Rules of Procedure must rather be brought into force by the Federation and the States. Respective activities have been taken up at almost all levels. The Federal Government has initiated the legislative change of the Budgetary Principles Act (Haushaltsgrundsätzegesetz) and the Federal Budget Code (Bundeshaushaltsordnung) required from its point of view – the respective contemplated priority of public tenders must be adjusted to the equal ranking of public tender and restricted tender with prequalification as now provided for in the UVgO for the range below the threshold value , though the legislative procedure (BT-Drs. 18/11135) will presumably require some more time.

Some German federal states currently amend their State Budget Regulations while other federal states presume that this is not necessary to bring the UVgO into force. Therefore, public contracting authorities should monitor closely any activities of relevance for them. As to its content, the UVgO closely follows the structure and content of the German Public Tender Regulation Part A (VgV) and sets forth more comprehensive and detailed regulations for the procurement of supply and service contracts in the range below the threshold value.

The first paragraph of the German Procurement Regulation for Public Works Part A (VOB/A) concerning below-threshold building contract awards has also been amended. This has already been carried out in summer 2016; by decree of 9 September 2016 the Federal Government has brought the amended version of VOB/A into force as of 1 October 2016. Currently the German Public Works Regulatory Committee (DVA) is working on another revision of VOB/A which shall then also include the equal ranking of public tender and restricted tender with prequalification as well as further amendments in respect of eligibility requirements. This revised amendment of VOB/A base sections shall, however, be presented only in 2018 as in this context the German Construction Contract Procedures Part B (VOB/B) shall be adjusted to the reform of construction contract law which is to date the subject of a legislative procedure (BT-Drs. 18/8486).

In the range above the threshold value no new legislative activities are to be observed. The EU Commission has presently put the planned revision of the European Remedies Directive on ice; insofar no new European projects are to be currently expected. The date 18 April 2017 is, however, of relevance for central purchasing bodies as they must mandatorily require submission of electronic bids and applications for participation (Sec. 81 VgV) as of that date in EU award procedures that are commenced from that date. All other contracting authorities may permit written proposals until 18 October 2018.

Besides the UVgO and the revised VOB/A base sections we have completed the collection of texts 2017 by Annex XIV of Directive 2014/24/EC (following Part 4. of the German Competition Act, GWB). This Annex is important with respect to the determination of social services and other specific services which have to be tendered Europe-wide only from a threshold equal to or greater than EUR 750,000 and to which the now simplified procedural rules set out there (cf. Sections 64 et seq. VgV) and pursuant to Sec. 49 UVgO also apply to the range below the threshold value. For the determination of such services Sec. 130 GWB refers to this Annex XIV.

We hope that the text output 2017 provides you with helpful support and assists you with your daily work with and in procurement law.
Our lawyers of the Public & Procurement practice group at the offices in Berlin, Dusseldorf, Frankfurt am Main, Munich as well as Brussels are ready to assist you any time with tailored advice and support.

Berlin, April 2017

© BEITEN BURKHARDT Rechtsanwaltsgesellschaft mbH, 2017

The serie is availlable in German language only. If you would like to have a printed copy please send an email with the subject "Request of serie procurement 2017" to BBMarketing@bblaw.com.  
 


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