Bundeskartellamt rejects application for review
in the “lorry toll” award proceedings
04.09.2002
The Bundeskartellamt has rejected the application by AGES Maut System GmbH & Co. KG, Düsseldorf (AGES), for a review in the award proceedings for the introduction and operation of a distance-related toll on lorries on German motorways.
The Federal Ministry of Transport (= contracting entity) had opted for the bid submitted by the ETC.de bidding syndicate which offers a substantially lower price (net present value), thus excluding AGES from the award. The Bundeskartellamt judges the decision of the contracting entity to be valid.
The President of the Bundeskartellamt, Ulf Böge, stated: “With this project which involves a public contract running into the billions and possibly has substantial competition effects on potential follow-up projects abroad, the Bundeskartellamt was faced with the most extensive and difficult application for review so far. Not only did it deal with the applicant’s (AGES) objections in all points, it also carried out an ex officio examination as to any violations of public procurement law."
AGES had based its application for review on an alleged violation of public procurement law since it was of the opinion that on the one hand the rival bidder ETC did not meet the minimum requirements laid down in the invitation to tender regarding the fee-levying and control system and that on the other the contracting entity violated the principle of equal treatment of tenderers.
According to the Public Procurement Tribunal’s examination ETC’s bid fulfils the minimum requirements set in the invitation to tender. This applies both to the efficiency of the log-in system for levying tolls and the efficiency and security of the control system for registering potential toll violators.
Neither has the Procurement Tribunal established an unequal treatment of the bids to the disadvantage of AGES, which would be in violation of public procurement law. In this connection it should be pointed out that, in view of the fact that the Federal Government holds a major stake in a company indirectly participating in ETC, i.e. Telekom AG, the Procurement Tribunal included in its review points which AGES had not even explicitly objected to.
According to the findings of the 2nd Procurement Tribunal of the Bundeskartellamt, the contracting entity did not violate the rules governing the award of public contracts. The application for review therefore had to be rejected. This decision is subject to immediate appeal within two weeks.
Note:
The AGES bidding syndicate comprises:
Aral AG & Co. KG, Bundeszentralgenossenschaft Straßenverkehr e.G., DKV EURO SERVICE GmbH & Co. KG, euroShell Deutschland GmbH, Handelsgesellschaft für Kraftfahrzeugbedarf GmbH & Co. KG, UTA Union Tank Eckstein GmbH & Co. KG and Mannesmann AG (meanwhile Vodafone).
The ETC bidding syndicate comprises:
Deutsche Telekom AG, Daimler Chrysler Services (debis) AG and Compagnie Financière et Industrielle des Autoroutes (Cofiroute), France.