Public procurement tribunal’s decision on procurement of new assault rifles for Federal Armed Forces – decision to award contract to Heckler & Koch was lawful

On 10 June 2021 the 1st Federal Public Procurement Tribunal decided on the application for review filed by C.G. Haenel GmbH based in Suhl. By filing the application for review Haenel challenged the decision of the Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support (BAAINBw) to award the contract for the provision of new assault rifles for the Federal Armed Forces (Bundeswehr) to Heckler & Koch GmbH, a company based in Oberndorf am Neckar.

Andreas Mundt, President of the Bundeskartellamt: “We were not able to identify any mistakes in the contract award procedure for the procurement of new assault rifles for the Bundeswehr. In our view the decision not to award the contract to Haenel but to its competitor Heckler & Koch was correct.”

In the course of the procurement procedure it was originally intended to award the contract for the provision of new assault rifles to Haenel. However, after the BAAINBw had reached the conclusion that the rifle offered by Haenel infringed the patents of other businesses, the company was excluded from the procurement procedure. In the end, the Procurement Tribunal did not have to rule on the company’s exclusion from the procurement procedure on account of the patent infringement since Haenel was no longer considered for the contract based on other reasons: A necessary recalculation of the tender price offered by Haenel resulted in the conclusion that the tender presented by Heckler & Koch was more economically advantageous. In its decision the Procurement Tribunal also dealt with grounds for excluding Heckler & Koch brought forward by Haenel. The BAAINBw’s discretionary decision not to exclude Heckler & Koch from the procurement procedure was ultimately not found to be objectionable.

Haenel can file an immediate appeal against the decision of the Procurement Tribunal with the Düsseldorf Higher Regional Court within a period of two weeks