The Cologne fire brigade may continue to use the Berlin fire brigade’s control software. That was decided by the Higher Regional Court of Düsseldorf. It was disputed whether the combination of software provision and cooperation between the state of Berlin and the city of Cologne is generally subject to tendering. This question also preoccupied the European Court of Justice (ECJ), which, however, provides for exceptions in the context of public-public cooperation. (Ref. VII Verg 25/18)
Kirstin van de Sande
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The city of Cologne took over the Ignis Plus software free of charge from the state of Berlin. City and country wanted to leave the further development of the program to one another. The software uses the exact positions of emergency vehicles in real time and can thus calculate which can be the fastest at the respective location.
The software manufacturer, the IT company for software development (ISE), resisted the cooperation. The company argued that the city of Cologne should have tendered the procurement of the software. In the second instance, the Düsseldorf Higher Regional Court submitted various legal questions to the ECJ for a preliminary ruling.
The ECJ stated that a contract consisting of a software license agreement and a cooperation agreement is generally subject to tendering. Exceptions are possible, including in this specific case: Public clients are generally allowed to work together on the control software of their professional fire brigades without a tender, as long as no private company is preferred (Az. C-796/18). In addition, the city of Cologne must tender follow-up services such as adaptation, implementation, maintenance and further development of the software.
The Düsseldorf Higher Regional Court checked these requirements and confirmed that they were being complied with by Cologne: They made the source code of the software and related information available to bidders in the award procedure for follow-up services for inspection.
Representative IT company for software development
Kraus Sienz & Partner (Munich): Bernhard Stolz, Loni Goldbrunner (both public procurement law) – known from the market
Representative city of Cologne
Heuking Kühn Lüer Wojtek (Düsseldorf): Kirstin van de Sande (Federführung), Dr. Ute Jasper; Associate: Rebecca Dreps (all copyright)
Inhouse (Cologne): Andrej Bespalov (Office for Law, Public Procurement and Insurance)
Düsseldorf Higher Regional Court, Procurement Senate
Dr. Christiane Maimann (presiding judge)
Background: Van de Sande, who was appointed partner at Heuking in 2020, appeared in the proceedings for the city of Cologne before the OLG and the ECJ. In Hamburg there is a similar procedure for a new operations control system, in which Heuking is also on the side of the city. The city of Cologne and Heuking have a longstanding client relationship. The lawyers around practice group leader Ute Jasper are regularly active for the city and a large number of its subsidiaries on public transport and construction projects, for example.
At the time of going to press, nothing was known about the mandate relationship between the Munich procurement and construction law firm Kraus Sienz and ISE. The invited state of Berlin did not appear in the legal dispute. (Melanie Müller)
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