Key topic e-bus procurement: Manufacturer carries risk, not the municipality

It will be one of the key topics for municipalities in 2018: the procurement of vehicles with innovative drive systems. Trade magazine Behörden Spiegel discusses the opportunities and risks of new technologies in a series of seminars. According to Dr. Ute Jasper, Partner at the law firm of Heuking Kühn Lüer Wojtek, a bundled award of all components is the best solution for transportation companies.
The conversion to electric vehicles and other drives is the largest and most fascinating climate protection project ever, and public transportation is destined to be a pioneer. Electric buses may also turn out to be a million-dollar grave for mayors and local councils, however - award procedures and procurement contracts must be optimally designed, warned Dr. Ute Jasper of the risks.
At the opening of the Behörden Spiegel seminar series at the Düsseldorf office of the law firm of Heuking Kühn Lüer Wojtek on December 1, Jasper presented the example of battery-powered buses to the 50 participants. If manufacturers not only provide the buses, but also the charging infrastructure required for operation, the energy storage units, and a depot management system, “it does not matter where the fault lies in the event of a system failure.”
“New technologies are always associated with risks, but only the manufacturers can bear the risks, not the municipality or its transportation company. The system must function flawlessly over the long term, the responsibility for the interfaces lies with the manufacturers provided that award procedures and contracts are structured accordingly,” said Dr. Ute Jasper, head of the law firm’s Public Sector & Public Procurement Practice Group.
Dr. Stefan Behrning of TÜV Rheinland Inter Traffic GmbH presented the state of the art of technical development by vehicle manufacturers at the Behörden Spiegel seminar. Oliver Hoch from the National Organization for Hydrogen and Fuel Cell Technology presented information on public funding opportunities for vehicle procurement.
Frank Gäfgen, General Manager of ESWE Verkehrsgesellschaft mbH, reported on the project of “Emission-free public transport in Wiesbaden” from a practitioner’s view. Dr. Ute Jasper and her team advise on the award procedure for the procurement of 221 purely battery-powered buses by 2022. Wiesbaden will be the first city in Germany to switch completely to emission-free local transportation.
Dr. Laurence Westen, lawyer at Heuking Kühn Lüer Wojtek, then answered the question of whether driving bans on diesel vehicles will actually be implemented and what the current jurisdiction is on this matter: “Whether and to what extent legal diesel driving bans can be introduced is currently the subject of two appeal proceedings at the Federal Administrative Court in Leipzig. Once the Federal Administrative Court has ruled, the situation will be clearer. In the medium term, however, lower vehicle emissions are a must,” he concluded.
Behörden Spiegel will continue its series of seminars in Stuttgart on January 26, in Frankfurt on January 31 and in Munich on February 7.
Background information:
The Public Sector & Public Procurement department has been one of the three best procurement law practices for years. Since 1991, it has advised on awards, restructuring, large-scale projects, and cooperations in the public sector and has accompanied several hundred large-scale projects of the federal, state and local authorities and their subsidiaries with a total volume of more than EUR 20 billion without any procedures having been successfully challenged.

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 in JUVE Handbook of Commercial Law Firms, most recently in its 2016/2017 issue, 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.
Dr. Laurence Westen is a lawyer in the "Public Sector & Public Procurement" Practice Group, Düsseldorf. He structures award procedures for contracting authorities and sector contractors and ensures that they are implemented in legally compliant manner, particularly where subsidies are used. Mr. Westen has extensive experience in local rail passenger transportation and public transport procurement and is recommended in public procurement law by legal analyst Legal 500.

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