Facts
In April 2003, the municipal community of Sigriswil invited three companies to submit offers for kitchen furnishings in the municipal retirement and nursing home "Schärmtanne". The most favorable offer came from X. at CHF 16,389.55. After the municipality had initially decided to award the contract to X., it learned that he had outstanding taxes. As a result, it excluded X. from the award and awarded the contract to a competitor, company A. X. filed an appeal against this decision, which, however, was not considered by the district governor of Thun due to the non-appealability of contract awards below the threshold values. The Administrative Court of the Canton of Bern also dismissed the appeal.Considerations
The Federal Court considers the rejection of the appeal to be lawful. Article 9 of the Internal Market Act (BGBM) does require that restrictions on free market access be made in the form of an appealable order and that cantonal law must provide for at least one legal remedy to an independent administrative body. However, the BGBM allows the cantonal legislature a certain degree of discretion in shaping legal protection.
The Bernese Procurement Act provides for a direct award of contracts below the threshold values without the possibility of appeal. This is permissible, as the Confederation itself…