Facts

Parties:

  • [A. AG] and [B. AG] (appellants)
  • [C. AG] (procurement authority)
  • ARGE [D.] (award recipient)

Facts:

  • The [C. AG] advertised the construction contract "[F.] , new drinking water pressure pipeline".
  • The ARGE [G.] (consisting of [A. AG] and [B. AG] ) submitted the most cost-effective offer.
  • The procurement authority excluded the ARGE [G.] from the procurement procedure as the offer would not cover the costs.
  • The ARGE [D.] received the award.
  • The appellants filed an administrative court appeal with the Canton of Wallis and later a subsidiary constitutional complaint with the Federal Supreme Court.

Considerations

The Federal Supreme Court examines its jurisdiction and the conditions for entering into force ex officio. The subsidiary constitutional complaint is admissible as the appellants have a legally protected interest in the cancellation of the award.

The appellants allege a violation of the right to be heard. Under Art. 29 para. 2 Cst., the parties are entitled to be heard, which also applies in procurement law. The procurement authority did not hear the appellants before excluding their offer. This violates the right to be heard.

The Federal Supreme Court examines the claims under Art. 29 para. 2 Cst. with free cognition. The cantonal provision in Art. 22 kVöB VS provides that the procurement authority must make inquiries in the case of unusually low…