Public Procurement Tribunal finds no fault in award procedure for toll system for heavy goods vehicles

Yesterday the Federal Public Procurement Tribunal rejected an application for review filed by AGES Road Charging Services GmbH & Co. KG (AGES), Langenfeld. The application for review was directed against a decision of the Federal Ministry of Transport and Digital Infrastructure according to which the company AGES can no longer participate in the bidding procedure for the toll system for heavy goods vehicles.

Andreas Mundt, President of Bundeskartellamt: "In September 2018 the contract with the current operator of the German toll system for heavy goods vehicles expires. In a multi-stage procedure the Federation is looking for a new contracting party to take over the operation of the toll system from 2018 onwards. We have found no infringement on the Federation's part in the award procedure. On the basis of the criteria established by the Federation it was allowed to exclude AGES from participating in the next stage of the bidding competition."

The operator of the German toll system for heavy goods vehicles is Toll Collect GmbH. Until now the shares in Toll Collect GmbH have been held by a consortium consisting of Deutsche Telekom, Daimler Financial Services and the French Vinci group. The Federation has a so-called call-option which it intends to exercise to acquire the shares held by the consortium by 1 September 2018. These shares are then to be transferred to the winner of the ongoing invitation to tender. The new operator contract will then be concluded with this company.

The tender procedure is conducted in two steps: Firstly, a maximum of four companies or consortia are to be selected in a so-called competitive tender process (qualitative selection). Negotiations on the bids submitted will then be conducted with these companies.

After the conclusion of the qualification competition AGES was not admitted to the subsequent negotiations because it had submitted a reference which was rated by the Transport Ministry as less adequate than the references submitted by the other candidates. In the reference the candidates were to document that they themselves or a third company nominated by the candidate already had experience with the productive operation of a toll system.

AGES objected to the assessment by the ministry and brought it before the Federal Public Procurement Tribunal at the Bundeskartellamt. In its decision of yesterday the tribunal found that there had been no errors of law in the Transport Ministry's assessment and rejected the application for review.

The Public Procurement Tribunal's decision is not yet final. AGES can file an immediate appeal against the decision at the Düsseldorf Higher Regional Court within a period of two weeks.