Renewal of MSR, measurement, control and regulation technology (26-59289)

✓This sets a quantitative minimum turnover criterion of € 1.6 million gross per year over the last three years.

✓In addition, liability insurance with defined coverage amounts for property, property and personal injury must be taken out (the exact amounts will be entered in the maintenance contract by the client; By way of example, liability in the event of slight negligence for property damage is limited to €500,000 per claim, a maximum of €1,000,000 in total, and for financial damage to an amount to be determined per claim, a maximum of €500,000 in total).

✓The scope, place and period of the contract shall be as follows: The contract includes the renewal of the measurement, control and regulation technology of the heating plant of the Schloss-Schule Ilvesheim, including the construction services defined in more detail in the VOB forms and service descriptions, as well as a maintenance and inspection contract for the technical installations concerned.

✓Such installations are specified in inventory lists (Annex 1 to the maintenance contract) by location, manufacturer/type, year of construction, general description and technical data; for each installation there is a work card (Annex 2) listing maintenance and inspection services, materials and parts where applicable, maintenance intervals and specificities.

✓Maintenance services include, but are not limited to: periodic maintenance and inspection in accordance with work cards, minor repair work to restore the target state without significantly increasing the amount of time spent, documentation of the services performed in the work report, notification of malfunctions in plant safety including, if necessary, initiation of decommissioning, indications of other defects or damage as well as necessary changes to maintenance intervals.

✓The contracting authority provides electricity, water and fuels free of charge and grants access; Water and energy costs should therefore not be included in the unit prices.

✓Site meetings are scheduled on a weekly basis with a suitable representative of the contractor; It must also draw up a construction deadline plan as a bar plan for its services and update it immediately in the event of changes.

✓The execution periods are binding contractual periods, i.e. both the beginning on 15.02.2027 and the completion on 02.06.2028 are contractual periods within the meaning of § 5 VOB/B.

✓As regards the award criteria and their weighting, the award document is clear: The award criterion is the price determined from the total value of the tender.

✓The evaluation sum is formed from the recalculated offer sum, in particular taking into account discounts, reimbursement amounts from the wage sliding clause and maintenance offers.

✓While the invitation to tender mentions that “several award criteria may be provided for in the attached Annex to 211 EU”, at the same time this specific procedure is clearly marked “price award criterion” in Form 211 EU; an additional annex ‘Award Criteria 227’ is mentioned, but no further qualitative criterion emerges from the excerpt.

✓Particularly highlighted is a bonus for workshops for the disabled: Their bid value is reduced by 15 % in the calculation (bonus) and if an offer from a workshop for disabled persons is just as economical as another offer, the workshop will be awarded the contract; proof of this status must be provided with the tender.

✓Discounts will only be counted if they are unconditionally granted as a percentage of the invoiced amount and listed in the appropriate place in the tender letter; Mixed calculations in which unit prices are artificially distributed among other items lead to the exclusion of offers.

✓The text contains numerous individual provisions on risks, special conditions, securities, subcontractors, deadlines and other obligations.

✓Penalties are provided for: If the contract deadlines (individual deadlines and completion deadlines) are exceeded, the contractor must pay an amount in euros or a percentage of the total amount of the order, excluding VAT, for each working day of delay; the exact reference value is part of the contract amount (excluding maintenance amounts), the total penalty will be limited to 5% of this contract amount.

✓Guarantees are also regulated: In the case of an order amount of at least € 250,000 excluding VAT, a security for performance of the contract equal to 5% of the order amount (including VAT, excluding supplements) must be provided; for claims for defects, the security shall be 3% of the sum of the advance payments at the time of acceptance.

✓If the guarantee is provided by way of a guarantee, the guarantee forms specified by the client must be used (contract performance, defect claims and advance payment guarantee).

✓Due to the special nature of the agreement, the final payment period is extended to 60 days, as is the occurrence of default pursuant to § 16 VOB/B.

✓Subcontracting and aptitude lending are permitted, but strictly regulated: the tenderer must indicate in the tender the services/capacities of other entities, provide evidence of their suitability and capacities upon request, replace designated entities where there are grounds for exclusion, and provide letters of commitment from those entities (form 236), including a joint declaration of liability in the case of an economic/financial suitability loan.

✓Safety information and declaration of commitment for subcontractors/subcontractors may also be requested (Form 126).

✓The maintenance contract contains extensive termination and service modification regulations (e.g. termination without notice in the event of premature termination of the construction contract, sale or permanent decommissioning of the facilities, legal constraints for maintenance by third parties, non-contractual performance, insolvency-related disruptions, inadmissible competition agreements, criminal acts such as bribery, granting of advantages, betrayal of trade secrets).

✓The maintenance contract also provides for a 1-year limitation period for claims for defects, as well as a wage adjustment clause on the basis of a relevant collective agreement/pay groups, or alternatively the declaration of a fixed price for the duration of the contract if the bidder's information on wage adjustment is not filled in.

✓Other areas of risk concern data protection and IT security: There is a declaration of consent to data processing (processing of personal data including quality-related performance information with the possibility of revocation) and an obligation to immediately report IT security incidents or cyber attacks to the IT Security Centre of the Financial Administration (SITiF BW), including specific information on the incident, attack vector, compromise possibilities, notifications under GDPR, involvement of law enforcement authorities and contact details of the contractor contact person.

✓In addition, Russia-related EU sanctions are binding: A self-declaration pursuant to Article 5k of Regulation (EU) 2022/576 confirms that no Russian nationals, companies established in Russia or more than 50% Russian-owned companies are involved and that no penalties are met even in the event of subsequent changes (subcontractors, suppliers, aptitude loan).

✓Finally, on any contradictions or corrections within the documents and the question of which statements are relevant: The general conditions of participation (Form 212 EU) contain standard rules on side offers, suitability, tender preparation, etc., of which individual points are overridden by project-specific information in the invitation to tender (Form 211 EU).

✓For example, the conditions of participation describe in detail the treatment and minimum requirements of side offers; at the same time, the call (211 EU, section 6.1) explicitly states that ancillary tenders are ‘not eligible’ and therefore point 4 of the EU Conditions of Participation does not apply.

✓Likewise, in the event of discrepancies between electronic data exchange files (GAEB DA-XML) and the written version, the written version shall prevail (Form 244 Data Processing); Differences in content compared to the data carrier must be indicated by the entrepreneur in the written version.

✓Although the award criteria are generally referred to as ‘multiple award criteria in accordance with Annex to 211 EU’, the specific label ‘price award criterion’ in 211 EU is crucial for this procedure; further criteria would only be relevant if they were specifically identified and weighted in the award criteria form 227.

✓For data collection and data processing, both the data protection information sheet and the special contractual conditions are decisive; however, it is expressly clarified that if consent is refused or revoked, only the personal data necessary for the execution of the procedure and contract will be processed.