Facts
The Federal Office for Buildings and Logistics (FOW) awarded the contract for the extension of licenses for the standardized federal workplace and related applications to Microsoft Ireland Operations Ltd. in a direct award procedure. 18 open-source software providers filed a complaint with the Federal Administrative Court and requested the revocation of the ruling and the conduct of a legally compliant procurement procedure. The Federal Administrative Court dismissed the complaint and denied the plaintiffs' standing. The plaintiffs appealed to the Federal Court and requested the revocation of the Federal Administrative Court's judgment.
The plaintiffs argued that the examination of the admissibility of the supplier-related restriction of the procurement object could be shifted to the examination of standing and that the admissibility of a direct award could be pre-judged in the context of the standing examination by a prior concretization of the procurement object to such an extent that there would be no room for the application of the provisions on direct awards as well as on the equal treatment of suppliers and technical specifications.
Considerations
The Federal Court examined the admissibility of the appeal and found that the plaintiffs have a legitimate interest in the revocation of the contested decision, as they are potential suppliers of open-source software products that could have submitted an offer in a lawful tendering procedure for the procurement object.
The court ruled that standing to appeal against a direct award is only available to potential…