Public Procurement Tribunal decides on procurement procedure of the German Federal Armed Forces for the supply of heavy transport helicopters

On 5 March 2021 the 1st Federal Public Procurement Tribunal decided on a procurement procedure of the German Federal Armed Forces for the supply of heavy transport helicopters. The procedure, initiated in February 2019, in which only the two US companies Lockheed-Martin and Boeing participated as bidders, was cancelled in September last year because the bidders’ offer prices lay well above the procurement costs provided for in the federal budget. Lockheed-Martin then filed an application for review with the Public Procurement Tribunal and requested it to oblige the Federal Armed Forces to continue the award procedure or, alternatively, at least to state that the cancellation of the procedure was unlawful.

In its decision the Public Procurement Tribunal confirmed the validity of the decision to cancel the procedure and rejected the request to have the award procedure continued. However, at the same time the Public Procurement Tribunal's decision established that the decision to cancel the procedure was unlawful. The reason for the tribunal’s conclusion was that the estimation of the procurement costs of the helicopters conducted by the Federal Armed Forces, on which the application for budgetary resources was based, was not documented in a transparent manner.

Andreas Mundt, President of the Bundeskartellamt: “The Public Procurement Tribunal’s decision shows on the one hand that it is only possible in very limited exceptions to oblige public contracting authorities to continue an award procedure that has been cancelled. This did not apply in the present case. On the other hand the decision shows that cost estimations for public procurements should always be documented in a transparent manner.”

The decision of the Public Procurement Tribunal can be immediately appealed before the Düsseldorf Higher Regional Court within a period of two weeks