Defence: 100 Milliarden Euro Soforthilfe für die Truppe – ein Schlaglicht auf die vergaberechtlichen Optionen zur beschleunigten Beschaffung

In a special session of the German Bundestag on February 27, 2022, Chancellor Olaf Scholz announced a massive increase in investments in the Bundeswehr. To this end, the federal government will set up a special Bundeswehr fund and secure it under constitutional law. The 2022 federal budget is to provide the special fund with a one-off amount of 100 billion euros. The funds will flow into necessary investments and armament projects of the Bundeswehr. Every year, more than two percent of gross domestic product is now to be invested in defense. 

In the coming weeks and months, the procurement regulations for accelerated procurement in the defence sector will be in focus and - as is already becoming apparent - will be put to the test, with the focus being on defence and security-specific contracts pursuant to Section 104 Paragraph 1 of the GWB. 
 
Due to their value, the contracts must regularly be procured across Europe in a formal procurement procedure. However, procurement law also recognises special exceptions to the obligation to tender for these contracts. According to Section 107 (2) GWB, the fourth part of the GWB does not apply to public contracts and concessions where the application of this part would force the contracting authority to provide information in connection with the award procedure or the execution of the contract, the disclosure of which in its opinion would be contrary to the essential security interests of the Federal Republic of Germany within the meaning of Article 346 (1)(a) of the Treaty on the Functioning of the European Union (TFEU), or which falls within the scope of Article 346 (1)(b) TFEU. According to this, each Member State can take the measures it considers necessary to safeguard its essential security interests insofar as they concern the production of or trade in weapons, munitions and war material. The activation of this second alternative is likely to be significant. According to a press release dated March 7, 2022, Defense Minister Christine Lambrecht has already informed the Defense Committee that the aforementioned exceptions should now be used wherever possible for the procurement of classic military goods. The reason for this is that the procurement rules are contrary to Germany's security interests due to the current security situation in Eastern Europe. 
 
In addition to the aforementioned exceptions to the obligation to tender, there are other options for speeding up procurement processes. The Procurement Ordinance for the Areas of Defense and Security (VSVgV) also provides for such simplified procedures in which the contracting authority can directly request companies to submit offers, for example if urgent reasons in connection with a crisis require it, Section 12 Paragraph 1 No. 1 lit. b) sublit. aa) VSVgV. Legally, this could also be a starting point for closing acute capability gaps in the troops more quickly. 
 
Finally, when conducting EU-wide procurement procedures, the acceleration of the review process is a key factor. Primary legal protection is criticized, particularly in the defense sector, for causing massive delays. The principle of acceleration in Section 167 Para. 1 GWB has actually not applied for a long time. Review procedures often take a year, without taking into account a subsequent court instance. A public contracting authority is therefore already free to submit an urgent application for a preliminary ruling on the award of the contract to the procurement chamber or the procurement senate, Sections 169 Para. 2, 176 Para. 1 GWB. In its decision, the chamber or court weighs up whether the contracting authority's interest in acceleration outweighs the applicant's interest. In the event of a crisis, a mandated deployment of the Bundeswehr, an equivalent deployment obligation of the Bundeswehr or an alliance obligation, the contracting authority's interest should generally prevail.  
 
Authors: Attorney Patrick Thomas; Attorney Martin Hupfer