When procuring equipment and materials, the Bundeswehr is subject to the procurement law that is binding on all public clients and is based on the principles of equal treatment, economic efficiency, competition and transparency, among other things.
However, before a tender can be issued, the first step is to define the military requirements. This is called the requirements assessment. These requirements are then recorded in a catalog of requirements, which then serves as the basis for creating a specification of services, which is the basis for the subsequent award procedure.
The bidders check the service description and then submit an offer.
How did the preparation for the assault rifle go?
The tender for the assault rifle involves a contract worth 250 million euros for the production and delivery of around 120,000 assault rifles, including accessories, over a period of seven years.
When determining the requirements, the findings from the inquiries on the current G36 assault rifle were taken into account. Among other things, conclusions were drawn from experience in terms of accuracy and penetration. In addition, the essential aspects were checked in a comparative test. This ensures that all the findings from the G36 investigations have been incorporated into the requirements, and that the weapons offered also meet the requirements.
All of this is reflected in a specification of services. This document was published in the online system TED ("Tenders Electronic Daily"), the online version of the "Supplement to the Official Journal of the European Union" for European public procurement. Any company could then apply on the basis of this public tender.
Transparency in the procurement process
Award procedures are to be carried out as openly as possible, and not restricted to one group of bidders, in order to create fair competitive conditions. In order to ensure a fair process with clear and transparent guidelines, all bidders receive the necessary information and documents.
Together with the description of services, the potential bidders are also be informed of the award and exclusion criteria as part of the request for offer. In order to ensure transparency in the award procedure, the evaluation of the individual requirements (weighting) and the evaluation method for determining the most economical offer are also supplied. In this context, however, economic does not mean that the cheapest offer wins. In addition to price, other factors such as performance are also taken into account.
How were the specifications applied when the assault rifle was tendered?
All criteria in the tender were checked, including in a trial. Each criterion was then evaluated according to a weighting that was previously communicated transparently and taken into account in the overall evaluation. Together with the offered price, this led to a mathematically understandable tender winner. The awarding authority - in this case the BAAINBw (Federal Office for Equipment, Information Technology and Use of the Federal Armed Forces) - is responsible for the appropriate selection decision, taking into account the criteria shown. It also defends its decisions in the event of any complaints and lawsuits from the unsuccessful bidders.
Suitability of the bidders
In order to be able to take part in the award, all competitors in complex projects must prove their ability to actually provide the contractually required service in advance. The performance is determined on the basis of suitability criteria announced in advance (professional qualification, factual and financial performance). After this review, suitable participants will continue to be admitted to the procedure or, if they are unsuitable, will be excluded. Legally, the ownership structure of a bidder may expressly play no role.
These principles were also used in the tendering process for the assault rifle.
If a bidder emerges as the winner in a tendering process, the unsuccessful bidders are first informed. The losing bidders then has the opportunity to take legal steps on the basis of the procurement law.
If an unsuccessful bidder believes that there are specific complaints under public procurement law, he can request the awarding authority, in this case the Bundeswehr awarding authority, to remedy the situation. This complaint must be received by the client within ten calendar days after the bidder has recognized the violation.
Federal Public Procurement Chamber
If the client (in this case, the Bundeswehr) does not remedy a legally justified complaint, the unsuccessful bidder can submit a review request to the Federal Public Procurement Chamber within a preclusive period. The application must be received by the Public Procurement Chamber within 15 calendar days of receipt of the notification from the client not to remedy a complaint.
The public procurement tribunal takes and justifies its decision in writing within a period of five weeks from receipt of the application. In the event of particular factual or legal difficulties, the chairman can in exceptional cases extend the deadline by notifying the parties involved by the required period. This period should not last longer than two weeks. (Section 167 GWB)
Düsseldorf Higher Regional Court
If the procurement chamber does not decide in the interests of the unsuccessful bidder either, the latter can lodge an appeal against the decision of the procurement chamber with the appeals panel of the competent higher regional court. In the case of the Bundeswehr, the matter would be dealt with at the Higher Regional Court in Düsseldorf.
The complaint must be submitted within a period of two weeks. In principle, further legal protection is not possible against the decision of the Higher Regional Court.
Conclusion of contract
Depending on the amount of the service to be contracted, Parliament must approve the investment. This limit is 25 million euros. The assault rifle system is above this limit, so that a parliamentary proposal must be drawn up and submitted to the budget committee for approval. The contract can only be signed with its consent.
There should be a framework agreement in the Assault Rifle System project. By concluding such a multi-year contract, the Bundeswehr has more flexibility in the design of calls. This enables the Bundeswehr to receive a large number of weapons over the corresponding period without having to tie up all of the financial resources from the outset. In addition, it is possible to react flexibly to changing situations.