Transparency requirement for electricity and gas concession selection procedures

The transparency requirement did not require the local authority to break down all material aspects it wishes to take into account in the evaluation of tenders down to the last detail in advance. This applied at least if the aspects listed in order to explain the selection criteria are not an exhaustive list, but rather present the central aspects from the municipality’s point of view. This was a necessary consequence of the fact that the bidding competition’s openness in terms of content gives the applicants scope to introduce their own new aspects. In this respect, the transparency requirement – if the tender allows the bidders the freedom to present their own concepts – did not demand that it is clear which services must be offered in order to make the highest rated bid when submitting the tender.

Furthermore, it could generally not be ruled out that the announced evaluation criteria contain terms that need to be filled in, which can only be concretized during the evaluation and classification of the tenders in individual cases – without changing the award criteria or their weighting – and thus require qualitative evaluations in their application. Such terms could not be avoided if the invitation to tender contains open-ended elements. This was not inadmissible from the point of view of transparency, as long as the bidders are able to recognize which requirements must be fulfilled, in particular which aspects of a bid are evaluated positively.

The decision presented above now offers the local authorities issuing tenders more freedom in the selection decision to be made.

If you have any questions in connection with electricity and gas concession selection procedures, please do not hesitate to contact us.