On September 15, 2020, the Federal Office for Equipment, Information Technology and Use of the Federal Armed Forces (BAAINBw) announced the winner of the tender in the award procedure for the Assault Rifle Project, the company C.G. Haenel GmbH limited liability company.
While examining a subsequent complaint, and having submitted a review request to the 1st Federal Public Procurement Chamber at the Cartel Office, it appeared that a possible patent infringement by C.G. Haenel had been discovered.
The internal examinations which were then initiated led to the conclusion that a patent infringement by bidder C.G. Haenel GmbH to the detriment of the bidder Heckler and Koch, cannot be ruled out. As a result, on October 9th, the federal awarding authority sent a letter (Section 134 GWB) to the two bidders advising them that the intended award of the contract to C.G. Haenel GmbH had been canceled.
This procedure does not constitute a cancellation of the entire award procedure. The Federal Ministry of Defense and the BAAINBw have subsequently re-examined in detail the previous, uncompleted award procedure to find a successor to the G 36 assault rifle.
As a result, it can be stated that the requirement of equal treatment of the bidders was ensured. The other procurement law principles of competition and transparency were also complied with.
However, this analysis did not bring any clarification to the patent law issue.
It is currently being examined how the problem of patent law that has been raised will affect the further course of the award procedure. In order to be able to make an independent and reliable decision, the Federal Ministry of Defense has commissioned an independent patent attorney to prepare an expert opinion. On the basis of this report, it will be necessary to assess the consequences that must be drawn in the award procedure.
With the submission of the expert opinion, the federal awarding authority will re-evaluate the offers, taking into account all aspects. Only then will the award procedure be resumed.
Until then, soldiers have a powerful weapon at their disposal in the form of the G36 assault rifle. To ensure full transparency, the Federal Ministry of Defense has sent a comprehensive report to Parliament, the Armed Forces Commissioner and the Federal Audit Office.
The public part is attached as an annex. (7 PDF pages, in German)