On 14th December 2011, the Act on the Amendment to Precedures for the Award of Contracts in the Fields of Defence and Security of 7 December 2011 has come into force. This was a late, but important step towards implementation of the Defence Procurement Directive aiming at an opening of competition in the fields of security and defence. The Defence Procurement Directive had to be transposed into German law by 21 August 2011.
The Act amends, in particular, the German Act against Restraints of Competition (GWB) by including regulations on the scope of application of procurement law to contracts in the fields of defence and security and on the adaptation of provisions on the review proceedings and the award procedures. In detail, the amendments relate in particular to
- the extension of the list of public contracts set out in §99 of the Act Against Restraints of Competition by defence-and-security-related contracts which are provided for in the new Sections 7 to 9 of §99 by implementing the definitions of the Defence Procurement Directive;
- the new provisions on exceptions to the scope of application of procurement law now dispersed among §100(2) to (8) of the Act Against Restraints of Competition (special types of contract and particularly security-related contracts), §100a of the Act Against Restraints of Competition (financial services, services on the basis of exclusive rights and telecommunications services), §100b of the Act Against Restraints of Competition (exceptions in the utilities sector) and §100c of the Act Against Restraints of Competition (exceptions in the fields of defence and security);
- the rules on the safekeeping of confidential documents in review proceedings (§110a of the Act against Restraints of Competition);
- the only minor adaptation of §115(4) of the Act against Restraints of Competition that provides for special rules regarding the lapse of the prohibition to award the contract;
- the authorisation in §127 No. 3 of the Act against Restraints of Competition to issue rules by the way of ordinances on the procedure for the award of defence-and-security-related public contracts.
The Act additionally contains as a follow-up regulation the exception of defence-and-security-related contracts from the scope of application of the German Utilities Sectors Ordinances (Sektorenverordnung (SektVO)) and Procurement Ordinances (Vergabeverordnung (VgV)). Thus, these ordinances may no longer be applied to such contracts although no rules for the award of contracts in the fields of defence and security have been enacted yet. It remains unclear whether implementation of such rules will be effected by way of a separate ordinance similar to the Utilities Sectors Ordinance, as announced in the circular by the Federal Ministry of Economics and Technology, or whether the rules will be implemented as Part 3 of the rules for the award of public works or services contracts (VOB/A; VOL/A). In any case, the European Commission has already adapted the forms by way of Commission Regulation (EU) No. 842/2011 of 19 August 2011.
With regard to the rest, the Defence Procurement Directive continues to be directly applicable , in particular with regard to the applicable requirements for the procurement procedure, of which the application can now fully be reviewed by the judicial bodies. The administrative decision by the Federal Ministry of Transport, Building and Urban Development of 26 July 2011 and the circular by the Federal Ministry of Economics and Technology of 26 July 2011 (more on these here) offer valuable assistance in this respect.
