In spring 2021, in the midst of the sharply increasing number of corona infections, things suddenly had to go very quickly for the red-black state government in Schwerin.
Mecklenburg-Western Pomerania was the first federal state to buy a license from the Berlin companies Culture4life and neXenio for their app called Luca.
Marcus Jung
Editor in business.
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The events in the March days move not only the data protection officers on the Baltic coast, but also the public procurement law. The reason: The contract, a so-called direct award, was awarded without a public tender. According to strict legal requirements, the public sector can only do this in exceptional cases. Especially when certain financial thresholds are exceeded, these are particularly susceptible to lawsuits from competitors and preoccupy the courts
In the case of the Luca app, the opponent is called Cube Software- und Hotel Projektierungs GmbH.
The Vienna-based company applied on its own initiative in Mecklenburg-Western Pomerania for an app for contact tracking at the beginning of March, but was ignored.
An application for review submitted to the state's public procurement tribunal, an independent body in the Ministry of Economic Affairs, was unsuccessful.
Unique selling point emphasized
The chamber justified its rejection on March 10th with the "unique selling point" of the Luca app.
Only this had submitted an offer with an interface to the specialist application Sormas used by the health authorities.
Because of the “special urgency”, the attached Culture4life and neXenio were allowed to be commissioned directly.
With his complaint, Cube took action before the Higher Regional Court (OLG) Rostock.
On Wednesday, the public procurement senate announced its verdict and dashed all of Cube's hopes for a new tendering process.
The OLG dismissed the complaint as unfounded.
According to a statement from the court, the Vienna-based company has "not yet developed a corresponding product of its own".
It does not meet the procurement criteria of the state of Mecklenburg-Western Pomerania - an award in a public tender would not have been considered from the outset.
Therefore, the public procurement senate saw no reason to even review the requirements for an emergency award without a public tender.
There is no right for Cube to object to the fact that the state government bought the Luca app without a tender.
Insider allegation refuted
In the justification, the OLG emphasized two points: Only the Luca app was able to communicate with the applications of the health authorities via an interface.
The Senate refutes the accusation of inside knowledge of Culture4life and neXenio as follows: Advance information from the state of Mecklenburg-Western Pomerania was not required because the specialist application of the health authorities as open source software was "accessible to everyone".
"We see ourselves confirmed by the renewed decision of a court in our sense that extraordinary times such as the corona pandemic require extraordinary action," said Christian level (SPD), responsible ministry for energy, infrastructure and digitization in Mecklenburg-Western Pomerania Demand. “Last winter we urgently needed a system like Luca as a solution for the urgently needed, fast and reliable contact tracking of possible sources of infection by the health authorities. The allocation rules allow us to take more unconventional paths to achieve this. There was not enough time for the usual awarding channels. "
The NDR first reported on the public procurement disputes in Mecklenburg-Western Pomerania in the spring. With the exception of Saxony, North Rhine-Westphalia and Thuringia, all the other 13 federal states have opted for a license agreement and the purchase of the Luca app.