Facts
On April 8, 2005, the Federal Office for Buildings and Logistics (BBL) publicly tendered a comprehensive IT project of the Federal Tax Administration through an open procedure and awarded the contract to X AG on March 20, 2006. After lengthy contract negotiations had not led to a conclusion with this bidder, the BBL revoked the award with a decision dated August 28, 2007 and published the termination of the procurement procedure the following day, on August 29, 2007.
On September 14, 2007, X AG filed a complaint with the Federal Administrative Court against both orders. In the proceedings regarding the revocation of the award, it requested that the decision of August 28, 2007 be set aside and the illegality of this decision, or possibly the actions of the contracting authority, be determined; in addition, the appeal should be granted suspensive effect and the contracting authority be instructed to refrain from all enforcement measures with a third party, namely the conclusion of a contract with a third party as well as the initiation of a new procurement procedure and/or the award to a third party, regarding the disputed procurement object. The appellant made similar requests with regard to the termination decision.
By interim decision of January 30, 2008, the Federal Administrative Court consolidated the two proceedings and dismissed the (initially provisionally granted) requests of the appellant for the granting of suspensive effect.
Considerations
The Federal Supreme Court first examined the admissibility of the appeal in public law matters against the interim decision of the Federal Administrative Court. It concluded that the requirements for the appeal were met, as it involved a legal issue of fundamental importance and the appellant was threatened with an irreparable legal disadvantage.
On the merits, the Federal Supreme Court confirmed the view of the Federal Administrative Court. The contracting authority can definitively terminate a federal procurement…