Contracts awarded by public contracting authorities, such as the Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support (BAAINBw), state defense authorities and agencies, authorities and organizations with security responsibilities such as the police, the Federal Criminal Police Office (BKA) and other security authorities (BOS), as well as by state and non-profit research institutions, are subject to the provisions of public procurement law. The VSVgV (Procurement Regulation for Defense and Security) and the newly created Section 3 of the VOB/A-VS contain special rules for the award of defense and security-specific public contracts, which differ significantly from the regulations applicable to the award of other public contracts. The special security and confidentiality requirements of military contracts, civilian classified contracts, and related construction contracts within the meaning of Section 104 GWB are in direct contrast to the transparency principles applicable to the general procurement market. There are special procedural simplifications for the preparation of the service specifications, the choice of the award procedure (negotiation procedure as the standard procedure), the suitability test and, in particular, with regard to legal remedies. In the case of the award of key technologies for the security or defense industry, Art. 346 TFEU, the award procedure may be waived altogether or, in any case, only take place to a limited extent. The time pressure that has arisen since the turn of the century and the BwBBG (Act to Accelerate Procurement Measures for the Armed Forces) have led to an increase in direct awards and further restrictions on legal protection.
Precise knowledge of the case law of the public procurement tribunals and public procurement senates can be decisive for success in the procurement procedure and/or any subsequent review proceedings. Without compliance with specific confidentiality requirements, successful participation in defense and security procurement procedures is out of the question from the outset due to a lack of proof of suitability. In any contract negotiations in the negotiated procedure, particular attention must be paid to ensuring that long-term contracts guarantee investment security while leaving sufficient scope for reaction and adaptation in the procurement or provision of services. In research and development contracts, care must be taken to ensure that the rights of use and the rights to exploit the research and development results are appropriately distributed.
We have been supporting our clients for many years in complex procurement procedures, including R&D contracts, license agreements, high-tech and infrastructure projects. We ensure that bids are submitted without errors and conduct targeted contract negotiations. We have extensive experience in numerous complaint and review proceedings before all state procurement tribunals, federal procurement tribunals, procurement courts, and the European Court of Justice.
