Negotiations can continue between the Federation and Toll Collect GmbH on extending the tolling system for trucks

Yesterday the Second Federal Public Procurement Tribunal rejected an application for review filed by Kapsch TrafficCom AG, Vienna, Austria. In the application the company objected to the negotiations conducted by the Federal Ministry of Transport and Digital Infrastructure exclusively with Toll Collect GmbH, Berlin, on extending the toll liability of heavy goods vehicles to all federal highways.

In the public procurement tribunal's opinion it is admissible in this case for the ministry to conduct negotiations exclusively with Toll Collect GmbH. The company has exclusive rights (in particular copyrights to the tolling system's software and ownership of the equipment and installations) and can accordingly prohibit third party access to the system at any time. Consequently only Toll Collect GmbH has the legal capacity to technically carry out the planned extension of the toll liabilty of heavy goods vehicles by the middle of 2018.

Andreas Mundt, President of the Bundeskartellamt: "With this decision the Federation is also not giving Toll Collect GmbH any competitive advantage for the re-tender of the operation of the entire tolling system from September 2018. The Federation has already publically announced its intention to acquire all the shares in Toll Collect GmbH by exercising a so-called call option when the contract expires. As it will then own all the rights to the system, the Federation will be able to award a new contract for the operation of the tolling system in a competitive tender procedure."

The Second Federal Public Procurement Tribunal has also decided that the Federation is not obliged under public procurement law to exercise the call option before the contract expires in order to ensure its entitlement to the rights. In so far the Federation correctly invokes its performance determination right which may not be encroached upon by the public procurement tribunals - e.g. by their stipulating alternative courses of action.

The decision is not yet final and can be appealed to the Düsseldorf Higher Regional Court.