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| Procurement law

BGH specifies the scope of the transfer entitlement of the new concessionaire

With its decision of 07. 04. 2020, the BGH has clarified the scope of the transfer entitlement of the new concessionaire vis-à-vis the previous operator of the general supply network pursuant to § 46 para. 2 sentence 2 of the EnWG. According to this, high-voltage and high-pressure pipelines in the municipal area are also part of the local distribution network if the system cannot be disregarded without the new concessionaire no longer being able to fulfill its supply tasks as the former system operator did, and the pipeline system has a more than insignificant role in local supply. The right of transfer is not limited to installations to which customers are directly connected. (BGH, UrtDec. of. 7. April 2020 - Case No.: EnZR 75/18)
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| Procurement law

Testing competence of the BNetzA in the tendering process for onshore wind energy

In a decision of 11 March 2020, the Düsseldorf Higher Regional Court (OLG) commented on whether the Federal Network Agency (BNetzA) is obliged to examine the legality of the licensing authority's immission-related decision in the context of the tender to determine the financial support for onshore wind energy plants. The court came to the conclusion that in the case of § 36f para. 2 p. 1 EEG 2017, it depends solely on the actual approval situation, i. e. depends on whether the competent licensing authority has granted a modification permit under immission control law. This applies accordingly to the existence of an approval for modification. For this reason, in the specific case, the contract was to be rejected in the invitation to tender, as a modification permit already existed and it was irrelevant to the BNetzA whether a new BImSch permit should have been issued by the permitting authority ( OLG Düsseldorf, Declaration of 11. 03. 2020 - Ref: 3 Kart 772/19)
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| Procurement law

BGH specifies requirements for complaints in the award of concessions

In its ruling of January 28, 2020, the Federal Court of Justice (BGH) specified the requirements for a complaint of nullity of a concession agreement in the context of the right of the supply network to transfer the rights to the new concessionaire. It must be shown that, given the overall circumstances of the case, it is at least possible that the award of the concession was based on the erroneous tender or the erroneous evaluation of the tenders. The concession contract shall not be considered null and void if the party whose rights have been infringed has had sufficient opportunity to defend its right to a selection decision before the conclusion of the concession contract but has not exercised that right. It must always be checked during the concession procedure whether there is discrimination and a direct complaint must be lodged against it ( BGH, Judgment. v. 28. 01. 2020 - Ref: EnZR 116/18)
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| Procurement law

BNetzA must disclose bid values anonymously

The OLG Düsseldorf has decided that the BNetzA is obliged to anonymously disclose bid values from the tender for wind energy. One unsuccessful bidder argued that it could not be ruled out that knowledge of the bid amount might provide the complainant with further indications of an inadmissible price agreement pursuant to Section 34 (1) b) EEG 2017. The Düsseldorf Higher Regional Court granted this to the extent that, in connection with the location and type of plant, which can also be seen from the bid, conclusions can regularly be drawn about the profits with which the respective bidder has calculated, which is why the bids would only have to be disclosed anonymously. (OLG Düsseldorf, Resolution of 14. 11. 2018 - Ref. : 3 Kart 6/18)
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| Procurement law

Transparency in the award of concessions

On 18 January 2019, the Leipzig Regional Court ruled that the allocation of concession for the electricity and gas grid to Stadtwerke Stollberg was not legitimate. In particular, the Court found that there had been a breach of the principle of transparency since access to the file was not sufficiently caused by the lack of explanation of the blackening of the file. In addition, irrelevant criteria were used in the selection, as non-binding supplementary offers for cooperation for the operation of the networks were requested so that there was a violation of the prohibition of discrimination. (LG Leipzig, judgment of 18. 01. 2019 - file no. : 5 O 2411/18)
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| Procurement law

Conflict of interests in the awarding of contracts

In its decision of 30 October 2018, the Karlsruhe Higher Regional Court ordered the partial repetition of an award procedure for a strategic partnership in order to participate in the award of a license for the respective local electricity networks, as one of the advisors in the award procedure was in a conflict of interest. At the same time, the consultant had advised the two cities on energy management and also supported the parent company of the successful bidders in court proceedings, which were conducted simultaneously. According to § 5 of the Licensing Ordinance, a conflict of interests already exists if there is a possibility that impartiality may be impaired. (OLG Karlsruhe, Dec. of 30 October 2018 - File No.: 15 Verg. 5/18)
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