Definition and Significance of the VOL
The abbreviation “VOL” stands for “Vergabe- und Vertragsordnung für Leistungen” (Procurement and Contract Regulations for Services) and is a central set of rules in German procurement law. Until its replacement to a large extent by the Procurement Regulation (VgV) and the Regulation on the Award of Public Contracts Below the EU Thresholds (UVgO), the VOL served as the main regulation governing the award of public supply and service contracts by public contracting authorities. Its provisions were aimed at standardizing and systematizing the entire procedure for procuring services (excluding construction works) in the public sector.
Legal Basis and Legal Classification
Historical Development of the VOL
The VOL was first introduced in 1926 and has since been revised and updated several times. The goal was to create uniform and transparent regulations for supply and service contracts awarded by public authorities. Unlike the VOB (Procurement and Contract Regulations for Construction Works), the VOL applied to all supply and service contracts, insofar as these did not include construction services.
With the implementation of European directives and the reform of German public procurement law since 2016/2017, VOL-A (General Part for Procedures) has been largely replaced above the threshold values by the Procurement Regulation (VgV). Below the threshold values, the VOL has been gradually replaced by the introduction of the Regulation on the Award of Public Contracts Below the EU Thresholds (UVgO). However, VOL-B (General Terms and Conditions of Contract) continues to apply as long as it has not been replaced by special conditions.
Structure and Systematics of the VOL
The VOL was traditionally divided into two main parts:
- Part A (VOL/A): Regulated the procurement procedure, in particular the process of tendering, bid evaluation, and awarding of contracts.
- Part B (VOL/B): Contained the General Terms and Conditions of Contract for the performance of services, forming the basis of the contractual relationship between the contracting authority and the contractor.
Both parts could be supplemented by Additional Contract Terms (ZVB) to accommodate industry-specific or contract-specific requirements.
Legal Nature of the Provisions
The VOL, especially Part A, was binding on public contracting authorities in Germany either by law or due to budgetary requirements. It was considered an administrative regulation, but could, by reference in the contract, also become a direct contractual basis between the contracting authority and the contractor (especially VOL/B).
Scope of Application of the VOL
The VOL applied to the award of public supply and service contracts by the federal government, federal states, municipalities, as well as other legal persons governed by public law. Excluded were contracts for construction works or other specially regulated services.
The distinction between contracts above and below the threshold values (based on EU thresholds) had a decisive impact on the applicable regulations: In the upper threshold area, the provisions of EU procurement law applied, supplemented by national regulations. In the lower threshold area, the VOL was applied but has since been replaced by the UVgO.
Procedure and Process of Awarding Contracts under VOL/A
VOL/A defined the stages and basic principles of a transparent, non-discriminatory procurement procedure. Public contracting authorities were required to comply with the principles of economic efficiency, equal treatment, and transparency.
Types of Procedures according to VOL/A
VOL/A distinguished between several types of procurement procedures, including:
- Open procedure (Public tender): Broad publication, participation possible for everyone.
- Restricted procedure (Restricted tender): Participation by selected companies, justified by special circumstances.
- Negotiated procedure (Direct award): Allowed for greater flexibility, particularly in special cases or contracts of low value.
For each type of procedure, the individual stages—from publication to suitability assessment to award of contract—were regulated in detail.
Award Criteria
The contract under the VOL had to be awarded to the most economically advantageous offer. In addition to price, quality, functionality, and other assessment criteria could be used, provided these were determined in advance.
Contract Design under VOL/B
Part VOL/B regulated the rights and obligations of the contracting parties after the contract was awarded and in particular during the provision of services.
Main Contractual Obligations
- Performance obligations: Precise description and delivery of the agreed supply or services.
- Acceptance and remuneration: Provisions regarding acceptance, payment periods, and billing modalities.
- Liability and Defect Rights: Scope of warranty, options for remedying defects, and limitation of liability.
Ancillary Obligations and Additions
- Contractual penalties: Options for stipulating contractual penalties in case of breaches.
- Termination: Rights to extraordinary and ordinary termination.
VOL/B could be adapted to the respective requirements of the contract through Additional Contract Terms (ZVB).
Legal Consequences of Breaches of the VOL
As described, public contracting authorities were bound to comply with the requirements of the VOL. Violations of VOL provisions could result in various legal consequences, such as procurement review procedures, claims for damages by affected bidders, or, in severe cases, the invalidity of the entire procurement procedure.
With the introduction of the VgV and UVgO, the enforceable legal bases for companies have further developed; the legal consequences of improper procurement remain relevant.
Current Developments – Replacement of the VOL
As part of the reform of procurement law since 2016, VOL/A in the upper threshold area has been replaced by the Procurement Regulation (VgV). For the lower threshold area, the Regulation on the Award of Public Contracts Below the EU Thresholds (UVgO) has been created, which largely replaces the procedures and content of the former VOL/A. The application of the UVgO is being gradually implemented at federal and state level and is now mandatory in many federal states.
VOL/B, however, remains in force as a set of rules for the general terms and conditions for public supply and service contracts unless new, specific contractual regulations apply.
Practical Significance of the VOL
Although the VOL has been replaced by other sets of regulations in large parts, it still has practical and historical significance in various areas. In particular, for ongoing procurements, contracts referring to VOL/B, or in cases where contracting authorities and contractors explicitly refer to the VOL, it remains relevant. In addition, the regulatory model of the VOL has been formative for the continued development of public procurement law.
Summary
The VOL was the central regulatory framework for the award of public supply and service contracts in Germany and governed both procedural aspects and contractual content. In the course of the revision of European procurement law, it has largely been replaced by the VgV and UVgO, but its contractual law (VOL/B) continues to serve as a supplementary set of rules in public procurement. The VOL is exemplary of the development from national to European procurement law and, until the full transition to the new legal system, retains an important place in German business and administrative law.
Frequently Asked Questions
What legal requirements must public contracting authorities observe when applying the VOL?
When applying the VOL (Procurement and Contract Regulations for Services), public contracting authorities are subject to numerous legal requirements. These derive primarily from the Act Against Restraints of Competition (GWB), the Procurement Regulation (VgV), and the applicable provisions of the VOL/A (for national and EU-wide procurement of supplies and services, excluding construction). Publicity and transparency are of primary importance, which is why contracting authorities are obligated to document the entire process—service description, announcement, bid evaluation, and contract award—in a comprehensible manner. They must also ensure that all applicants and bidders are treated equally and that no discrimination occurs. Observing deadlines, in particular bid submission deadlines and, where applicable, objection periods, is also one of the essential requirements. If the estimated contract value exceeds the thresholds under the VgV, public contracting authorities must apply the provisions of VOL/A-EG for EU-wide tenders. Non-compliance with these legal frameworks can lead to successful review procedures and corresponding sanctions.
What legal remedies are available to bidders in the event of violations of the VOL?
Bidders who feel disadvantaged by an unlawful procedure or decision in a VOL procurement procedure have various remedies at their disposal. Initially, they have recourse to the so-called review procedure under §§ 155 ff. GWB, provided the contract value exceeds the relevant EU threshold. Bidders can submit a review application to the responsible procurement chamber. The prerequisite is that the bidder has previously raised the violation of procurement provisions with the contracting authority, and the contracting authority has failed to respond or has not responded properly. During the review procedure, the chamber in particular examines whether the public contracting authority has complied with the provisions of the VOL. Provisional legal protection measures (e.g., prohibition of contract award pending a decision) are also provided for. In national procedures, bidders can, where appropriate, contact procurement bodies or pursue civil law claims (e.g., damages in the case of clear procurement law violations).
When is there an obligation for EU-wide tendering under the requirements of VOL/A-EG?
According to the provisions of VOL/A-EG, there is an obligation for EU-wide tendering as soon as the supply or service contract to be awarded exceeds the current EU threshold value in accordance with § 106 GWB. These threshold values are regularly updated and refer to the estimated total contract value excluding VAT. The decisive factor is the correct estimate of the contract value, which must be carried out objectively at the start of the procurement procedure. If the estimated contract value exceeds the threshold, the procurement procedure must generally be advertised EU-wide according to the provisions of VOL/A-EG, which entails more comprehensive requirements regarding transparency, documentation, and publication (particularly in the EU Official Journal).
What role does the principle of competition play in the legal framework of the VOL?
The principle of competition is the central legal guiding principle of the entire procurement procedure under the VOL. According to § 97 (1) GWB, public contracting authorities are obliged to award contracts through competition unless statutory exceptions apply (e.g., negotiated procedures without prior competition under strict conditions). The principle of competition not only guarantees equal opportunities for all bidders but also ensures the optimal use of public funds by selecting the most economically advantageous offer. Legal violations of this principle, such as the impermissible restriction of the range of participants or discrete information sharing with selected bidders, are contrary to procurement law and may render the procurement procedure subject to challenge.
In which cases is the cancellation of the procurement procedure under VOL legally permissible?
The cancellation of a procurement procedure under the VOL is only legally permissible if one of the reasons expressly provided for in the procurement regulations applies. Such grounds may include: the existence of serious procedural errors, the absence of economical offers, a substantial change in the procurement documents during the ongoing procedure, or the subsequent elimination of the need for the contract. However, the cancellation may not be arbitrary, in particular not to favor certain bidders or for budgetary reasons unrelated to the tendered contract. As a rule, a comprehensible documentation of the reasons for cancellation is legally required. Abusive cancellations can be reviewed and, if necessary, sanctioned in the review procedure.
What legal requirements apply to the suitability assessment of applicants under the VOL?
The legal requirements for assessing the suitability of companies result from §§ 122 ff. GWB and the provisions of VOL/A and VOL/A-EG. Public contracting authorities must clearly and transparently define in advance for each procurement procedure which criteria will be used to determine professional competence, capability, and reliability. These selection criteria may not be arbitrary but must be objectively connected with the subject of the contract and comply with the principles of competition law. The review is made solely based on the required evidence (e.g., professional references, proof of financial capacity, declarations of reliability). If suitability evidence is not submitted or is incomplete, the bid can only be excluded if this possibility was announced in the procurement documents and is legally compliant. A request for additional documents is permissible within certain limits in accordance with § 56 VgV.
How are changes to procurement and contracts regulated after contract award?
After the contract is awarded, the provisions of the GWB and VOL/A generally prohibit substantial changes to the contract, since these could circumvent or undermine the competition previously conducted. Exceptions are exhaustively regulated in § 132 GWB. Material changes to the contract content that would constitute a new contract within the meaning of procurement law are therefore not permitted and require a new procurement procedure. However, insubstantial contract amendments—such as adjustments due to unforeseeable events—are permissible as long as the overall character of the contract is maintained and the thresholds and maximum values for addenda are observed. All changes must be comprehensively documented, as violations may still lead to review procedures or claims for damages even after the contract award.
