Facts
The Canton of Appenzell Innerrhoden conducted an invitation procedure to obtain offers for an electronic archiving system. X. GmbH, whose offer was not considered, filed a complaint with the Cantonal Court against the award to Y. AG. The Cantonal Court did not enter into the complaint, as the contract with Y. AG had already been concluded and X. GmbH had not asserted its claims for damages in a timely manner. The Federal Supreme Court overturned this decision not to enter and obliged the Cantonal Court to review the legality of the award.Considerations
The Federal Supreme Court decided that the Cantonal Court should have dealt with the complaint of X. GmbH and ruled on the legality of the award to Y. AG, regardless of whether X. GmbH had already asserted claims for damages. According to Art. 9 para. 3 of the Federal Act on the Domestic Market (BGBM) and Art. 18 para. 2 of the Intercantonal Agreement on Public Procurement (ICAPP), there is an obligation to determine the legality of the award, even if the contract has already been concluded and a revocation of the…