Decision on the Legality of the Contract Award in the Procurement Procedure for the Construction Contract "Renovation of the Weissenstein Tunnel, Implementation of the DDA at the Oberdorf and Gänsbrunnen Railway Stations"

Facts

The starting point of the proceedings was the award of the construction contract to [A. AG] by the contracting authority on 18 September 2020. Both B. and [F.] filed appeals against this award decision with the Federal Administrative Court. The contracting authority then indicated that it would revoke the award decision of 18 September 2020, without, however, issuing a materially amended decision. Subsequently, the contracting authority awarded the contract again to A. AG. The Federal Administrative Court annulled the award to [A. AG] and instead awarded the contract to B. [A. AG] and [F.] appealed these decisions of the Federal Administrative Court to the Federal Supreme Court.

Considerations

The Federal Supreme Court held that the award decision is an indivisible, unified decision, the challenge of which by several bidders requires material coordination of the appeal decisions. This means that the appeal decisions must be issued in a coordinated manner over time, the procedural rights of all participating bidders must be safeguarded, and the parallel proceedings must be decided by the same composition of the court. In the present case, the Federal Administrative Court did not comply with…