In-house allocation

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An in-house award (or in-house award , in-house business, etc.) is in public procurement law the award of a public contract without a public tender to a contractor belonging to the state. It is carried out by a public client to a supplier who either belongs to the client itself (e.g. as a legally dependent agency ) or who is legally independent, but is controlled by the contracting authority and essentially only works for him. In the latter, practically more important case, one speaks of a quasi-in-house award .

In-house awards include, for example, the award of contracts or concessions from a local authority to an organization-privatized company controlled by a purely communal organization , a communal company or a purely communal association . The institute of in-house procurement is of practical importance because it allows contracting authorities to join forces for the joint fulfillment of a public task by a company they support and to award contracts to this company without an invitation to tender.

The term in-house 'in-house' stems from the fact that such contracts are awarded within the legal sphere of the state and therefore do not affect economic competition among private individuals.

European Law

Directive 2014/24 / EU of the European Parliament and of the Council of February 26, 2014, published in the Official Journal of the European Union on March 28, 2014, regulates in Article 12 the issue of public contracts between public sector bodies. I.a. the materiality criterion is changed: Activities for third parties must account for less than 20% of the activities of the controlled legal person (Paragraph 1). In addition, the reverse in-house situation is regulated for the first time: the controlling legal person performs tasks for the controlled legal person (para. 2). The award guidelines were implemented in national law on April 18, 2016. In-house allocation was regulated in Section 108 GWB .

Germany

The transfer of a public task by way of an in-house award does not fall under the public procurement regulations of the Act against Restraints of Competition (GWB) and the Public Procurement Ordinance and can therefore be done by hand without a tender. The direct award of service concessions, which normally does not fall under the procurement law of the GWB anyway, does not, as in-house award, constitute a violation of the general prohibitions of discrimination and transparency requirements of European primary law .

The following prerequisites are tied to an in-house award:

  • The company accepting the order must (be able to) be controlled like its own department.
    • No private shareholder may be involved in this company. B. several municipalities. This also enables inter-municipal cooperation that is free of public procurement law. Here, too, strict limits are set in the case law of the European Court of Justice (ECJ) .
    • According to the judgment of the Federal Court of Justice (BGH) of July 3, 2008 (Az .: I ZR 145/05), a stock corporation does not meet this requirement even if the shares belong 100% to the public sector because the general meeting of the board of directors “neither superordinate is still authorized to issue instructions ”. According to the current case law of the European Court of Justice (ECJ, NVwZ 2009, 1421 - Ponte Nossa), a stock corporation can now also be a party to an in-house award. It is crucial that the contracting authority has a decisive influence on the strategic goals and important decisions of the company.
    • In contrast, the organizational structure of a limited liability company, according to the case law of the Federal Court of Justice of June 12, 2001 (Az .: X ZB 10/01), offers extensive possibilities for influencing and controlling, so that control can generally be assumed as with a separate department at a GmbH is.
  • The contractor's work is essentially carried out for the contracting authority (s). Other activities may only be of subordinate importance. With the judgment of September 14, 2006 (Az .: 13 Verg 2/06), the OLG Celle found that the partnership agreement of a municipal company explicitly provided for the possibility of concluding contracts with non-shareholders and that sales through business with Third in three years was about 7.5%. On April 19, 2007, the ECJ raised the threshold to 10% in the judgment in the Asemfo case (C-295/05).
  • There are some general EU allocation rules. These include the prohibition of discrimination , the principle of equal treatment and other basic features of the award procedure .
  • However, it is irrelevant:
    • Who pays the fee (the contracting authority or third parties as users of services).
    • In which area the activity is carried out.

In-house awards are particularly common in public transport , as the operating companies are often the successors of the former municipal utilities, which are now run in the form of a GmbH , but whose shares are mostly still in the sole municipal ownership.

Switzerland

In-house procurement is not regulated in Swiss procurement law. The doctrine advocates the application of the case law of the European Court of Justice .

In the draft for a total revision of the Federal Act on Public Procurement (BöB) submitted to Parliament in 2017 , the Federal Council proposes that this practice be anchored in law:

"This law also does not apply to the procurement of services: [...]

d. in the case of providers over whom the client exercises control that corresponds to the control over their own departments, insofar as these companies essentially provide their services for the client. "

- Art. 11 para. 3

literature

  • Malte Müller-Wrede , The new regulations for in-house procurement , in the compendium of procurement law . 2nd edition, Bundesanzeiger Verlag, Cologne 2013, ISBN 978-3-8462-0050-6 . P. 292 ff.
  • Andreas van den Eikel, Christoph Riese: News about in-house business - The end for mixed-economy companies ?. VergabeR 2005, p. 590 ff.
  • Markus Pöcker, Jens Michel: Procurement law and organization of public administration: From the formalism of the legal person to adapting to changing operational and organizational rationalities . DÖV 2006, 445–453.
  • Markus Böckel: The award of the contract as part of an in-house business. The district 2003, p. 518 ff.
  • Markus Böckel: Procurement law treatment of service concessions. LKV 2003, p. 393 ff.
  • Matthias Christian Orlowski: Admissibility and limits of in-house awarding. NZBau 2007, pp. 80–88.

Web links

The European Court of Justice (ECJ) has already expressed its views on in-house awards several times in procurement law, for example in the ECJ rulings

Individual evidence

  1. ↑ Directive 2014/24 / EU of the European Parliament and of the Council of February 26, 2014 on public procurement and repealing Directive 2004/18 / EC
  2. ↑ ECJ, judgment of April 6, 2006, case C-410/04 (Associazione Nazionale Autotrasporto Viaggiatori - ANAV) on curia.europa.eu
  3. ↑ Message on the revision of procurement law of February 15, 2017 , p. 58 on Art. 11, Paragraph 3
  4. ↑ Federal Act on Public Procurement (BöB), draft of February 15, 2017