A contracting authority may be denied, to give the award to an offer, had precipitated extremely low only because of a calculation error by the vendor

Calculation error when submitting a bid against contracting authorities

Responsible for disputes relating to procurement procedures X. Civil Senate decided today, the conditions under which it is denied a contracting authority, to give the award to an offer, had precipitated extremely low only because of a calculation error by the vendor.

The tenderer had certain road construction at a cost of approximately. 455.000 Offered €. The next best price amounted to some. 621.000 €. Before awarding a contract, he told the contracting authority, to have chosen a wrong approach in an amount bid position, and asked for the exclusion of his tender by the Evaluation. This did not please the defendant country after, but given the bidder the contract. Since this did not execute the contract on the basis of his tender submitted, entered the country back from the contract and hired another company, the rendered performance at a higher price. The additional costs required by the country originally responsible bidder as compensation.

The district court denied a claim for damages in the country. The appointment of the country has remained without success.

The Federal Court has held, that the contracting authority against him by § 241 Abs. 2 BGB *) obligations imposed thoughtfulness breach, if he wants to keep the bidder in the execution of the contract at a price, based on a significant calculation error. The Federal Court has clarified this, that is not sufficient, however slight, of any error in this regard and that it must be ensured, that a bidder unwrapping under the pretext of calculation error of a deliberately very low calculated Offer, because he feels it to be detrimental as for himself in retrospect. The threshold for breach of duty by awarding the contract to a calculation error-prone price but exceptionally be exceeded in the area of ​​public procurement, if simply can no longer be expected from bidders from a sensible contracting commercial perspective view, with the erroneous price calculated as a still approximately equivalent return for the service to construction, Delivery- or to be content service. It behaves and performs as the client nevertheless the conclusion of the contract caused, he can not claim damages from bidders not fulfilling the contract, if the work in question could be executed as a result only at a price higher than the calculated erroneously by the tenderer. The conditions for a considerable same degree calculation error has affirmed the Court of Appeals correctly, with the extra large spacing between the error-prone and offer the next best offer of particular importance.

* § 241 Obligations under the contractual relationship

(1) Virtue of the obligation, the creditor is entitled, to demand from the obligor power. Performance can also exist in a failure to.

(2) An obligation may, in its content to any part of consideration for the rights, Undertake legal protection and interests of the other part.

Judgment of 11. November 2014 – X ZR 32/14

LG Hanover - Judgment 24. June 2013 – 19 The 90/12

OLG Celle - Judgment 20. February 2014 – 5 You 109/13

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