The tender documents contain a sentence that appears in this form in hundreds of specifications: "Personnel deployed shall provide evidence of the instruction course under Section 34a GewO." What is being tendered is patrol rounds through a town hall with a citizens' service centre, during opening hours, two circuits per shift.
Those two statements may not fit together. And if they do not, the client has a problem that will only surface once somebody else looks at it.
Two routes, and a third that hardly anyone mentions
Anyone carrying out guarding duties for a security company needs evidence of qualification under Section 34a of the Trade Regulation Act (Gewerbeordnung). Not every job in a security company counts as a guarding duty; administration, technical work and certain service tasks may be classified differently.
The instruction course comprises at least forty teaching hours at the chamber of industry and commerce. It does not conclude with a separate competence examination. The chamber will, however, only issue the certificate where the person attended without absences and demonstrated through participation and through oral and written questions that they have understood the content. It is therefore less than an examination and more than a record of attendance.
The competence examination is the formal written and oral examination before the chamber, and it is required by law for certain activities.
The third route is almost never mentioned in tenders: the Guarding Ordinance (Bewachungsverordnung) recognises a range of vocational, further training and career qualifications as equivalent. A specialist in protection and security, a certified works security officer, certain police and armed forces career qualifications. A specification naming only the instruction course or the competence examination excludes these credentials without anyone having intended it.
The provision that catches public buildings
Which activities require the competence examination is set out in Section 34a(1a) sentence 2 GewO. Five categories, and the first affects public buildings considerably more often than those involved realise.
Among the activities requiring the competence examination are patrol rounds in public traffic areas or in areas under domiciliary rights with actual public traffic. On the chambers' reading, such an area is any area the owner makes accessible to the general public without determining the group of people in advance. School buildings, hospitals, publicly accessible courts, entrance halls, sports facilities and shopping centres are named expressly.
That puts many buildings in a different position from the one their contract describes. Where the principal task of the personnel deployed consists in guarding a larger area by walking through it, and that area is open to the public, the instruction course is not sufficient.
The remaining four categories matter less for institutional clients but should be known: protection against shoplifting; door supervision at the entrance of licensed nightclubs; the guarding of reception facilities and shared accommodation for asylum seekers in a supervisory capacity; and the guarding of access-controlled large events in a supervisory capacity. Anyone tendering for accommodation facilities should read the fourth category closely: it attaches to the supervisory capacity, that is, to the person responsible on site for organising the guarding and authorised to give instructions.
Where the line becomes difficult
The building type on its own decides nothing. Three features have to come together: the area has to be open to the public, the work has to amount to a patrol round in the sense of guarding a larger space by walking or driving through it, and that activity has to be the defining principal service.
Blanket classification fails in both directions as a result. Regularly moving between rooms in a museum, guarding individual rooms in turn, is generally not treated as a patrol round. Nor is a static gatehouse duty where the route between two buildings is covered. A round through a publicly accessible administrative building as the main task certainly is.
Where doubt remains, the competent trade authority decides, and its advice is free of charge. This is the point at which we regularly advise clients to pick up the telephone once before the documents are published.
What goes wrong when the classification is off
Where the specification states only "instruction course under Section 34a GewO" and patrol rounds requiring the competence examination are in fact performed, the client receives personnel who are not permitted under the Trade Regulation Act to carry out the task required.
That has three consequences, and they compound each other. The price comes out lower, because the qualification is cheaper, and that distorts the competition to the disadvantage of those who calculated correctly. The individual deployed incurs a personal risk. And in the event of an incident, the question arises whether the personnel were permitted to be deployed for that task at all.
How that is to be assessed in terms of liability is a legal question. What we can say is simpler: it is not a situation you end up in if you have spent ten minutes on it beforehand.
The four places qualification can sit
Once the question is settled, the answer has to go in the right place. There are four, and they are frequently confused.
Whether a company has qualified personnel in sufficient numbers at all is a question of suitability. What qualification the individual actually deployed must hold belongs in the specification of services. A qualification above the statutory minimum may serve as an award criterion, provided it can be graded sensibly. And that it is maintained throughout the contract term is a condition of performance.
The most common mistake is to put everything into the suitability criteria. Do that and you have nothing left in hand after the award, because suitability is checked once and binds nobody thereafter.
One addition that improves the evaluation: not every higher qualification improves every position. At a reception desk with heavy visitor pressure, de-escalation training, language skills or current first-aid certification are often worth more than a higher formal qualification. Evaluate the proportion of qualified staff across the board and you may be rewarding something that changes nothing in the building.
How qualification can be checked on site
Under Section 18 of the Guarding Ordinance, every guard must carry an identity card issued by their employer. It shows, among other things, the guard register identification numbers of the individual and of the company. Those performing certain activities must in addition visibly wear a badge with their name or identification number and the name of the business.
There is one limitation you need to know: the duty to produce the card under Section 18(2) BewachV applies to the enforcement authorities, that is, the public order office, the police and customs. The client is not among them. It cannot require production as a matter of law, and the guard register itself is not open to it.
That is precisely why the contract needs a provision, and a data-minimising one. For the purpose of monitoring it is usually enough to have a deployment list with a personnel code instead of the name, the type of qualification, the contractor's confirmation of the register position and the date of the building-specific briefing, together with a duty to notify changes and a right to inspect the evidence on a sample basis. Names and full guard register numbers should only be required where you actually need them, for access authorisation for instance. Retention and deletion periods go with it.
Without such a provision, qualification in the building remains an assertion. With one drawn too widely, you acquire a data protection problem.
Three questions before the next tender
What are the personnel actually going to do, and is the patrol round the defining principal service?
Is the area worked in accessible to the general public without the group of people being determined in advance?
And if you answer yes to both: does your documentation specify the competence examination, or does it specify the instruction course?