Frankfurt am Main Higher Regional Court, Order of 23.12.2021
– 11 Verg 6/21 –

Is the invitation to tender for video conferencing systems for Hessian schools contrary to award rules?

The procurement of a data protection-compliant video conferencing system by the State of Hesse cannot be carried out on the basis of the existing award documents. If the Land maintains its intention to procure, the award documents must be rewritten in consideration of the legal opinion of the awarding senate of the Higher Regional Court of Frankfurt am Main (OLG) in connection with the suitability test. In its decision, the OLG confirmed the decision of the Public Procurement Tribunal.

The Land Hessen invited tenders throughout Europe for the provision of a video conferencing system for all 2000 Hessian schools. The system was to be reliable and compliant with data protection regulations.

The capacity was to allow the simultaneous participation of 200,000 pupils, or 450,000 at peak times. Bidders should submit a reference on the provision of a video conferencing system environment to prove their suitability.
Judges see deficiencies in the tender in the area of suitability criteria the award procedure

The Land Hessen intended to award the contract to a co-bidder of the applicant in this case. This was the subject of the award review proceedings initiated by the applicant. Due to deficiencies in the invitation to tender in the area of suitability criteria, the Public Procurement Tribunal reverted the award procedure to the stage prior to publication of the notice. The appeal filed against this decision was unsuccessful before the Higher Regional Court.

The Land had assumed a non-transparent concept of a video conferencing system in the suitability test.

In the suitability test, the Land had assumed a non-transparent concept of video conferencing system, because it had assumed that such products could also be referenced which did not even contain the core elements of the tendered service. In any case, the core elements of the tendered service included a minimum number of simultaneously supported videoconference rooms (these represented the classrooms) in which all participants were visible in class size with browser-supported operation. The reference of the bidder who, according to the Land’s assessment, was to be awarded the contract, did not cover a rudimentarily comparable service.

Since the suitability criteria are intended to enable a prognostic decision on the performance of the bidders, the Land had to revise its tender documents on its own responsibility. The award procedure had therefore been reset to the status of the invitation to tender.