What is Clarification in Procurement Law?
Clarification (German: Aufklärung) in procurement law refers to the procedure where the contracting authority asks a bidder to explain certain bid components in more detail. This may relate to prices, technical solutions, calculation bases, or other bid aspects. Clarification serves proper bid review and must be strictly distinguished from prohibited post-tender negotiation.
Legal Framework
- § 60 VgV: Clarification of bid content — central provision
- § 15(5) VgV: Prohibition of negotiations in open and restricted procedures
- § 44 UVgO: Clarification of price appropriateness below thresholds
- § 16d(1) No. 2 VOB/A: Clarification for construction procurements
Clarification vs. Negotiation
| Clarification (permitted) | Negotiation (prohibited) |
|---|---|
| Explaining existing bid components | Changing bid content |
| Resolving ambiguities | Price negotiation |
| Demonstrating price calculation | Post-hoc improvement |
| Explaining technical solutions | Introducing new service elements |
Triggers for Clarification
1. Abnormally low tenders (§ 60 VgV): The most common trigger. Required when the bid price is significantly below competitors (rule of thumb: more than 20% below the next bid). The bidder must demonstrate a sustainable calculation.
2. Technical clarification: Unclear product specifications, deviations from standards, use of alternatives.
3. Suitability-related clarification: Unclear references, personnel capacity questions.
4. Formal clarification: Obvious typos (e.g., decimal errors in prices), contradictory information.
Clarification Process
- Request: Authority requests clarification in writing
- Deadline: Reasonable deadline (typically 3-7 business days)
- Response: Bidder explains the points requiring clarification
- Meeting: Optional oral discussion (§ 15(5) VgV)
- Assessment: Authority evaluates the explanation
- Decision: Bid remains or is excluded
Consequences
Successful clarification: Bid stays in evaluation; results become part of the procurement report.
Failed clarification: Prices cannot be plausibly explained — exclusion (§ 60(3) VgV). Technical solution fails requirements — exclusion. No response — possible exclusion.
Important for Bidders
- Keep calculation documentation ready
- Explain openly why your price differs
- Always meet deadlines for clarification requests
- Do not modify your bid during clarification
- Document all communication carefully
Patterno hilft
Patterno supports you in preparing for potential clarification requests. Our platform analyzes market prices and competition data, allowing you to build a well-founded calculation from the start — so you are prepared if the authority initiates clarification on your bid.