Software-Kooperation: Oberlandesgericht bestätigt Vergabefreiheit

📝 Background: A major German city had been operating its fire department dispatch center with a private manufacturer's software system since 2006. When the provider announced in 2015 that it would discontinue maintenance and further development at the end of 2019, the city sought a replacement solution. On September 10, 2017, it concluded a software licensing agreement with a neighboring federal state for the free use of the dispatch software developed there. At the same time, both partners agreed to a cooperation: future software enhancements would be developed jointly and made available to each other free of charge. A competing software manufacturer considered this a paid public contract exceeding the EU threshold and filed review applications, which the Public Procurement Chamber initially rejected. The company immediately appealed this decision to the Higher Regional Court. 📝 ... 💡 Key Point of the Decision: While the court confirmed that the free provision of software, through the obligation to freely distribute subsequent developments, constitutes a benefit in kind (and thus a consideration), it nevertheless classified the agreements as permissible "public-public cooperation" under Section 108 Paragraph 6 of the German Act Against Restraints of Competition (GWB). The decisive factor was that the city and state fulfill joint public tasks on an equal footing, mutually exchange their services, and no private company is unfairly favored. Crucially, the city possesses the complete source code of the system and commits to making it, along with its documentation, accessible to all interested parties in future procurement procedures for maintenance, adaptation, or further development. This ensures compliance with the prohibition of preferential treatment required by the European Court of Justice (ECJ), meaning there is no violation of procurement law. The competing bidder's appeal was dismissed; the bidder bears the costs of the proceedings.