Introduction of eForms to German Public Tenders
Written By
Associate
Germany
As a lawyer in our Düsseldorf office, specialising in public commercial law, I advise both the public and private sectors, particularly in public procurement law proceedings and the associated issues.
Counsel
Germany
Since 2014, I have been a specialist public procurement lawyer working as part of our international Regulatory and Administrative Practice Group in Düsseldorf, where I am an associate, supporting clients with advice and my comprehensive knowledge in public procurement, privatisation and European law. In addition, together with my colleagues, I am one of the most recognised specialists in this field in Germany. Since 2019, I have also been advising on the interface between public procurement law and offences against competition, in particular compliance and investigation.
From October 25, 2023, the new EU standard forms - the so-called eForms - will be mandatory for tenders above the European thresholds. The German legislator also plans to introduce the regulations regarding eForms for tenders below the European thresholds in consultation with the federal states.
The changes regarding tenders above the European thresholds are based on the Commission's Implementing Regulation (EU) 2019/1780. Section 10a of the Regulation on the Award of Public Contracts (VgV) adapts German public procurement law to the requirements of the Commission's Implementing Regulation (EU) 2019/1780; the other procurement regulations refer to this basic standard.
The purpose of introducing eForms is to fasten the process of digitizing public tenders. Companies should be able to find notices of interest to them more easily, while at the same time the administrative burden should be reduced, and data of better quality should be collected. It is true that notices are already transmitted electronically to the Publications Office of the European Union. The TED forms used for this purpose, although they are electronic, are designed as a closed form and are thus still very close to the paper form.
The eForms, on the other hand, allow for notices consisting of differently composed data fields, with Member States of the European Union being able to introduce optional data fields as mandatory fields. The mandatory data to be provided by the contracting authority is therefore expected to increase. For example, information on whether secondary bids are permitted will be mandatory.
As far as can be seen, only Germany has made use of the possibility of introducing optional data fields as mandatory fields. Thus, in Germany some data fields will be obligatory to be filled out, which cover aspects of the strategic procurement. Strategic aspects refer, for example, to social and environmental aspects, innovative procurement and SME interests. According to the explanatory memorandum to the law, this should not result in additional bureaucracy.
At national level, it is also mandatory that notices must be sent electronically to the Publications Office of the European Union via the Public Procurement Data Service - set up at the Procurement Office of the Federal Ministry of the Interior and Community. However, this data service does not replace the known procurement platforms, as these can still be used as they have always been. All notices that are mediated via the data service are then to be made available as far as possible via the notice service.
