Legal certainty after deletion of Section 3 (7) sentence 2 VgV

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A legal opinion by Prof. Dr. jur. Martin Burgi, Head of the Research Center for Public Procurement Law and Administrative Cooperation at the Ludwig-Maximilians-University in Munich, can serve public contracting authorities and awarding chambers as a basis for decision-making when dealing with the deletion of Section 3 (7) sentence 2.

The deletion of Section 3 (7) sentence 2 of the Public Procurement Ordinance (VgV) 2023 had led to uncertainty among public contracting authorities as to how the contract value calculation in this area can be carried out in a legally secure manner. A new legal opinion now confirms the possibility of a joint award of contracts for planning and construction services, combined with specialist lot formation, as indicated by the BMWK. It also emphasizes that the principle of SME-friendly procurement must continue to be observed.

Both German and European public procurement regulations stipulate that a contracting authority is free to choose whether it wishes to award planning and construction services separately or jointly, including in combination with a specialist lot. With this alternative procurement concept of joint award, public procurement law assumes that the contract as a whole is a construction contract. As a result, the threshold value of EUR 5,538,000 for the award of construction services is applied and not the threshold value of EUR 221,000 for planning services.

The expert opinion was commissioned by the Federal Chamber of Engineers, the Federal Chamber of Architects, the AHO (Committee of Associations and Chambers of Engineers and Architects for the Fee Structure) and the VBI - Association of Consulting Engineers.

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