In its September 16, 2020 broadcast, ARD business report “Plusminus” once again focused on the confusion surrounding the invitation to bid for face masks in the corona pandemic. Many retailers who were supposed to procure protective masks for the Ministry of Health during the peak phase of the pandemic in April are now sitting on unclaimed protective masks, complaining about unpaid bills. In the meantime, some 60 complaints against the Ministry of Health have been filed with Bonn Regional Court. The relevant companies intend to claim outstanding payments in excess of 400 million euros.
“Plusminus” alleges that the Federal Ministry of Health had not acted in the taxpayers’ interest when awarding the contracts. In an open-house procedure, every dealer who agreed to supply any quantity was awarded a contract at a firm price of 4.50 euros for FFP-2 and FFP-3 masks and 60 cent for surgical masks. Since profit margins were high, the Ministry received a large number of offers. Signing more than 700 contracts with 300 suppliers, millions of face masks were procured.
The contracts, however, clearly exceeded the Federal Ministry of Health’s planned budget of EUR 1.2 billion when equipment worth EUR 6.4 billion was ordered.
“A firm price is legally very questionable if it is higher than the usual market price,” Dr. Ute Jasper, Head of the Public Sector and Award Practice Group at Heuking Kühn Lüer Wojtek, pointed out in the interview. “The public sector may not purchase above market price, as is required by law. Usually, you proceed the other way. To find the most economical solution, you specify quality and delivery dates and then assess in competition at which prices you are able to obtain the desired quantities. This is something the government could easily have done at the time.”
The many face masks have a limited shelf life. If the Federal Ministry of Health fails to accept them before their expiration dates, they have to be disposed of, which will be expensive for taxpayers.
The entire interview in “Plusminus” can be found in the ARD Mediathek media library.
Heuking Kühn Lüer Wojtek’s “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 heads Heuking Kühn Lüer Wojtek's “Public Sector & Public Procurement” department. For years, she has been ranked number 1 with her team in JUVE Handbook of Commercial Law Firms. According to “Law Firms in Germany,” she is the “premier contact on the market” for infrastructure. In October 2016, she received the JUVE Award for Regulated Industries with her team.