Public Business Law

PwC Legal wins in Federal Court of Justice: direct award in Heinsberg was lawful

Düsseldorf, December 27th 2019

Following years of legal dispute surrounding the direct award of a contract by the District of Heinsberg, review proceedings for this award – supported by PricewaterhouseCoopers Legal AG Rechtsanwaltsgesellschaft (PwC Legal) – have now been concluded, with the Federal Court of Justice (Bundesgerichtshof, or BGH) ruling in favour of the District’s decision on November 12th 2019 (XIII ZB 120/19).

This public procurement review began as far back as 2016, and concerned a decision by the District of Heinsberg to directly award the contract for operating all bus services in Heinsberg to WestVerkehr GmbH, a company owned by the District. After more than three and a half years, and going through all available judicial authorities (Public Procurement Complaint Board [Vergabekammer], Higher Regional Court [Oberlandesgericht, or OLG], European Court of Justice [ECJ] and BGH), the case has now been successfully resolved.

The BGH reached its ruling after the case was referred to it for a decision by the OLG Düsseldorf using a so-called deviation referral (Divergenzvorlage). This referral was made because the OLG Düsseldorf wanted to deviate from the ruling reached by the OLG Jena in another, similar case (ruling of June 12th 2019 [2 Verg 1/18]; direct award in the Ilm District). At the same time, the OLG Düsseldorf lifted the prohibition on awarding the contract which had been in place up to this time, resulting in the District of Heinsberg making the direct award on July 23rd 2019.

The BGH had no doubts about the effectiveness of the direct award, and confirmed that completing the direct award settled the case. The BGH also found that there was no breach of the applicable Regulation (EC) No 1370/2007 that could have rendered the direct award null and void, nor was there any breach of the prohibition on providing notifiable aid laid down in Article 108(3) of the TFEU. Otherwise, no infringement of the plaintiff’s rights could be identified that would have reasonably justified the plaintiff’s motion.

PwC Legal (Düsseldorf):

Maren Weber (lawyer, tax consultant, Partner with overall responsibility), Sascha F. Schaefer (lead lawyer)

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