Facts
The municipality of U. invited six companies, including B. AG and A. AG, to submit an offer for the procurement, installation, and introduction of municipal specialist applications. A. AG filed a complaint against the award to B. AG and alternatively requested the conduct of an open procedure. The Administrative Court dismissed the complaint, as A. AG was not legitimized to challenge the fact that the invitation procedure was conducted improperly. A. AG and the Competition Commission (WEKO) subsequently filed an appeal in public law matters with the Federal Supreme Court. WEKO argued that the invitation procedure violated the Internal Market Act (BGBM), as the procurement was above the relevant threshold and should have been publicly tendered.Considerations
The Federal Supreme Court ruled: - The legitimacy to appeal in the cantonal proceedings is at least based on Art. 89 of the Federal Supreme Court Act (BGG). A protected interest that establishes legitimacy exists if the appellant would derive an effective practical advantage if their request is granted. - In procurement law, it is also generally the case that a non-considered bidder is legitimized to appeal if they would have a real chance of being awarded the contract if they prevailed. This also applies if the bidder challenges formal defects such as the choice of the wrong award procedure, provided that this could increase their chances of being awarded the…