The City of Cologne has cleared another hurdle in the legal dispute over the procurement of the new “Ignis Plus” operations control software. In its May 28, 2020 judgment (C-796/18), the European Court of Justice (ECJ) confirmed that public-sector clients may, in principle, cooperate with regard to the operations control software of their professional fire brigades without an invitation for bids, provided that this does not favor a private supplier over its competitors.
The state of Berlin had provided the City of Cologne with the operations control software free of charge as part of a cooperation agreement. A competitor of the supplier objected to this with the argument that the City of Cologne should have put the procurement of the software out to bidding, but lost in the first instance before the Rhineland Public Procurement Chamber. In the second instance, Düsseldorf Higher Regional Court suspended the appeal proceedings and referred various legal questions to the ECJ for a preliminary ruling.
The ECJ ruled that the combination of software licensing and cooperation is a public contract for which a bidding procedure is mandatory. The obligation to invite bids is exempted, however, in the context of public-public cooperation. The ECJ has now confirmed that public clients may also cooperate in “accessory” activities such as software, although they perform the actual public task (firefighting by the fire brigade) separately.
The final ruling in the main proceedings will now be issue by Düsseldorf Higher Regional Court.
“The decision is important for public authorities. Public contracting authorities are likely to cooperate in all activities that contribute to meeting their tasks effectively without an award procedure,” Ute Jasper, Lawyer and Team Leader at Heuking Kühn Lüer Wojtek, was pleased to note. “This means that the old dispute as to whether cooperation is permitted in auxiliary transactions has been resolved in the interest of the administration,” added Kirstin van de Sande, Lawyer and representative of the City of Cologne in the appeal proceedings.
The “Public Sector & Public Procurement” department has been one of the market leaders in public procurement law for years. Its lawyers hold top spots in German and international lawyer rankings. Since 1991, they have advised on awards, restructuring, large-scale projects, and cooperations in the public sector and have accompanied several hundred large-scale projects of federal, state, and local authorities and their subsidiaries with a total volume in excess of EUR 40 billion without any procedure having been successfully challenged to date.
Dr. Ute Jasper is one of the most renowned lawyers for procurement and infrastructure projects in the public sector. She advises federal and state ministries, municipalities, and businesses, particularly on innovative and complex projects. Ute Jasper is a Partner at the law firm of Heuking Kühn Lüer Wojtek and heads its “Public Sector & Public Procurement” department. For years, she has been ranked number 1 in Public Procurement Law in JUVE’s Handbook of Commercial Law Firms and according to “Law Firms in Germany,” is the “premier contact on the market” for infrastructure. In October 2016, she received the JUVE Award for Regulated Industries with her team.
Kirstin van de Sande, Partner, is a member of the “Public Sector & Public Procurement” practice group with a focus on designing and implementing complex public procurement procedures. She represents the public sector in review proceedings before public procurement chambers and higher regional courts. In these proceedings, she acted on behalf of the City of Cologne before Düsseldorf Higher Regional Court and the European Court of Justice.
Image source: City of Cologne