Public Procurement

Firms which are active in public procurement issues for awarding authorities and/or bidders are dealt with in this chapter. Many lawyers have a background in the construction industry, where public procurement has traditionally played an important role in contracts for public authorities. Others derive their expertise from a specialization in administrative law. Useful chapters for further reading include real estate and construction, administrative law and PPP and infrastructure.

Developments

"Public procurement law is constantly entering into new fields of everyday life that one would not have thought possible a little while ago" were the words of one public procurement lawyer, who is not alone in this observation. One year on from the Düsseldorf Higher Regional Court's (Oberlandesgericht) precedent-setting "Ahlhorn" decision, those in the market have gotten used to the fact that real estate sales by public authorities may be subject to public procurement law, and they are already turning their attention to other sectors: alongside the ongoing topics of regional rail/public transport and IT, it is the multi-billion healthcare sector that has been especially hard fought over of late. Possibly the most sensational event of the year was the issue surrounding the obligation to tender for health insurance funds. This was reflected in a tangle of proceedings surrounding the AOK discount contracts with pharmaceuticals manufacturers, which also led to confusion for those involved. Before the social and procurement courts, a number of representatives of pharmaceuticals companies and statutory health insurance funds disputed the issue of whether or not discount contracts with pharmaceuticals manufacturers should be put up for tender across Europe. The ECJ will most likely make the final decision, but one thing is for certain: "The series of proceedings will have a massive influence on the future tendering activity of statutory health insurance funds," as one lawyer involved put it. Lots of health insurance funds have already started inviting tenders in accordance with public procurement law by way of precaution. Most local authorities are also following a similar line when it comes to their real estate sales.

The market

The law firms are reacting to the rising demand for advice: public procurement teams are growing and personnel expansion often entails strategic reorientation. A number of top firms, most recently Heuking Kühn Lüer Wojtek and some time ago Boesen Rechtsanwälte, have introduced a project manager level within their teams, thus transferring the supervision of individual cases over to experienced associates. Other firms such as Beiten Burkhardt and Görg Rechtsanwälte are increasingly gearing their public procurement groups towards internal specializations. This trend away from partner-dominated practices and towards the active creation of leverage structures is a sign of the maturity of the legal market in public procurement and at the same time evidence of the fact that, at many firms, young public procurement lawyers have been trained up who will shape the scene in the years to come. Smaller units have to consistently break new ground if they want to hold their own alongside these hard-hitting large teams. The decision of the Berlin firm Müller-Wrede & Partner to join forces with the renowned state aid law boutique von Donat + Quardt was a widely noticed step in this respect. This will most likely give rise to substantial synergies, as public procurement and state aid law aspects are often very closely interwoven, for instance in larger-scale PPP projects.