The state of Baden-Württemberg and Bayerische Eisenbahngesellschaft mbH may grant the contract for network 1, Stuttgart network, to Abellio and Go-Ahead, allowing the largest sub-project of the competition in rail transport to be completed. On April 29, 2016, Karlsruhe Higher Regional Court as the highest instance found that the bids of DB Regio violated mandatory requirements of the contracting authorities.
DB Regio had based its bids based on a lease period that was too short in the first year of operation and violated a requirement of the contracting authorities, according to which the amount of the subsidy for 2019 must not exceed the subsidy amount for the subsequent year by more than 10%. In this way, Baden-Württemberg and Bavaria intended to ensure a uniform burden on public finances across the entire contract period. In addition, DB Regio failed to include the workshop cost, as required.
In the first instance, Baden-Württemberg Procurement Chamber had already held the bid exclusion to be justified, while DB Regio’s arguments were not considered justifiable. Karlsruhe Higher Regional Court confirmed the first instance decision.
Heuking Kühn Lüer Wojtek structured the complex award procedures and represented the contracting authorities in the litigation. "We are pleased that Karlsruhe Higher Regional Court followed our argumentation as well. This ensures that customers will benefit from new modern vehicles as of the summer of 2019," said Dr. Ute Jasper, Head of the Public Sector & Public Procurement practice group at Heuking Kühn Lüer Wojtek.
"The contracting authorities took a clear step towards competition and were rewarded in every respect," concluded Dr. Laurence Westen, Lawyer in Dr. Jasper’s department.
The contracting authorities invited bids for transport services with new vehicles in the amount of about 15 million train kilometers per year and a term of 13 years. Because of the highly successful bid, the subsidies payable by the contracting authorities have been reduced by more than half compared to the previously applicable Large Transport Contract.
Dr. Ute Jasper is one of the best known lawyers for public procurement and public infrastructure projects. She advises federal and state ministries, municipalities, and companies. Ute Jasper heads Heuking Kühn Lüer Wojtek's "Public Sector & Public Procurement" department. For years, she has been ranked number 1 in JUVE Handbook of Commercial Law Firms, and according to "Law Firms in Germany" is the "premier contact on the market" for infrastructure.
Dr. Laurence Westen is a lawyer in the "Public Sector & Procurement" practice group, Düsseldorf.
Dr. Jens Biemann is Salaried Partner in the "Public Sector & Procurement" practice group, Düsseldorf.