Public procurement tender evaluation: effects of erroneous assessments and requirements for documentation

The Bavarian Supreme Regional Court (BayObLG) addresses, alongside fundamental public procurement law questions, also the requirements for a public procurement tender evaluation.

The Bavarian Supreme Regional Court (BayObLG) in a recent decision (Beschluss vom 07.05.2025 – Verg 8/24) addresses fundamental public procurement law questions. In doing so, the court also comments extensively on the requirements for a public procurement tender evaluation.

Fundamental public procurement law questions

1. How far does the assessment discretion of the contracting authority extend in the evaluation of concepts?
2. When does an unlawful public procurement assessment exist?
3. What requirements does § 8 VgV impose on the documentation of award decisions?
4. When is the engagement of a lawyer by the contracting authority to be regarded as required (not merely permissible) – and when not?

At the centre is the evaluation of complex concepts in the context of an open procurement procedure, as is increasingly common in the healthcare, IT and service sectors.

What this was about: Tender for complex services with concept requirements

The respondent as contracting authority – a public hospital – invited tenders in an open procedure on an EU-wide basis for the provision of procurement services in the healthcare sector. Two large purchasing consortiums (the applicant and the intervener) submitted bids.

The tender evaluation was based on the following evaluation system:

• 30% price (rebate)
• 70% quality based on multiple concepts with sub-categories, totalling a maximum of 220 points.

Concepts were required in particular for:

• rebate mechanisms (concept 1),
• measures to prevent price increases (2.6),
• ensuring timely provision of documents (2.7–2.9),
• digitisation of the platform (3.7–3.11),
• innovative products (4),
• networking and further training offerings (5),
• supply shortage management (6.1–6.2).

Course of proceedings:

The applicant failed in the overall comparison despite a better rebate – because the intervener was rated significantly higher in quality. The applicant raised objections and filed a request for review, to which the public procurement chamber granted partial relief. Both sides appealed.

The errors in the tender evaluation in detail

The court found numerous serious and structural errors in the concept evaluation:

1. Contradictions to its own target specification (e.g. concept 1 – rebate)

• Error: The contracting authority had explicitly named rapid repayment as positive in the evaluation matrix.
• Conflict: The applicant offered faster repayment than the intervener – but nonetheless received fewer points because this allegedly led to increased administrative burden.
• Legal assessment: The BayObLG makes clear: whoever specifies a particular feature as an award criterion may not reverse this into a negative when evaluating. This undermines transparency and equal treatment.

2. Incomprehensible, inconsistent evaluations (e.g. concept 2.6 – preventing price increases)

• The contracting authority explicitly praised the applicant's crisis management team – whilst simultaneously criticising "lack of depth" without explaining what this is supposed to consist of.
• Problem: There is an absence of stringent, consistent reasoning for the scoring.

3. Unclear evaluation criteria and shifting standards

• On multiple occasions, non-published expectations (e.g. personalised notifications, certain search functions) as the basis of the evaluation, although these were not the subject of the tender (e.g. concept 3.7 and 3.8 on platform functionality).
• Breach of the transparency obligation (§ 97 Abs. 1 GWB): Bidders must know according to what criteria they will be evaluated.

4. Impermissible subjectivity

• In several cases (e.g. concept 3.8) subjective experience with a platform was incorporated into the evaluation, instead of assessing the concrete concept content submitted.
• The court made clear: The evaluation must be limited to the contents of the offers. Subjective external impressions are contrary to procurement law.

5. Misinterpretations and interpretation errors

• Example concept 5 (further training): The contracting authority believed that it was not apparent that an offered training programme would also be available to the contracting authority.
• Error: The concept was formulated under the heading 'Offer for employees of the contracting authority'.
• The court ruled: A proper interpretation would have understood this as an offer to the contracting authority.

6. Missing comparison despite relative evaluation

• Although a 'relative comparison' was provided for as a method, in several cases no factual reference was made to the evaluation of the intervening parties.
• This contradicts the comparative evaluation standard required by the BGH (BGH, NZBau 2017, 366, Rn. 53).

Documentation pursuant to § 8 VgV: Form present – content incomplete

The BayObLG makes clear:

• Documentation obligations serve not only transparency, but also ensure lawful decisions.
• The procurement record was formally present – but substantively insufficient, because:
• • No consistent line was apparent,
  • significant considerations were not documented,
  • deviations were not justified,
  • comparison with other offers was often missing.

Lawyer: Permissible yes – recoverable no

The court distinguishes:

• The engagement of a lawyer is of course permissible, even for public contracting authorities.
• However, whether the opposing party must bear the costs is governed by § 182 Abs. 4 GWB: Only if the engagement was necessary.

Here, however, it is not necessary for the contracting authority to engage a lawyer, because:

• The evaluation of concepts is part of the {
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