On August 22, 2025, our lawyer Daniel Schölzel dealt with the decision of the Darmstadt Administrative Court of April 1, 2025 (Ref.: 7 L 2856/24) in a LinkedIn live on public procurement law.
On April 1, 2025, the Darmstadt Administrative Court ruled in its decision (case reference: 7 L 2856/24) that a selection procedure for the award of service concessions or contracts may be carried out in the context of subsidized broadband projects in accordance with the antitrust provisions of the KonzVgV and VgV — even if a sector exception actually applies.
Our video discussing the judgment:
Facts of the case
The defendant (AG) — a municipality — received grants for a profitability gap model from both the federal and state funding bodies for broadband expansion as part of the so-called white-spot program. Both underlying funding decisions expressly referred to the NGA framework regulation and the Broadband Directive.
To implement the project, the GTC invited tenders for construction and network operation services in a Europe-wide selection procedure. The tender documents used there contained the general information that the procedure would be carried out in accordance with the provisions of the Concession Award Ordinance (KonzVgV) and the Public Procurement Ordinance (VgV). However, individual provisions of the aforementioned regulations were not listed.
The applicant (ASt) — a bidder in the proceedings — submitted a bid that was subjected to a price clarification. This was due to the following anomalies: On the one hand, inadmissible mixed calculations were made, on the other hand, the prices were set unusually low. As ASt was unable to dispel the doubts about the adequacy of the prices, its bid was excluded. It applied to the Darmstadt Administrative Court (VG) for interim legal protection against the impending award of the contract to a competitor.
Key point of the decision
The VG Darmstadt clarified: Even if concessions for telecommunications lines are generally excluded from the procurement regulations, public contracting authorities can and must apply the provisions of the KonzVgV and VgV, which stipulate the funding conditions.
The judges thus followed the line of the Higher Administrative Court of Saxony, which had already ruled that a procedure may be based on the requirements of the KonzVgV and VgV as a whole. The decisive factor is not whether it is formally a concession or a contract, but that the funding decisions require transparency, equal treatment and non-discrimination.
The reference in the tender documents (“two-stage procedure with a preliminary competition”) was sufficient for the court. An explicit mention of all regulations in the contract notice — as required by the VK Südbayern — was not necessary.
Consequence: The exclusion of the offer due to mixed calculation and inadequate prices was lawful.
Tips for public clients
- Check funding decisions carefully: These often require the application of the principles of public procurement law — even if a sector exception applies.
- Create transparency: A clear reference in the tender documents is usually sufficient to ensure the applicability of the KonzVgV/VgV.
- Observe documentation: Particularly in the case of price clarifications and exclusions, a comprehensible justification is crucial.
Tips for bidders and funding recipients
- Read the tender documents carefully: Even if the area exception applies, the rules of the KonzVgV/VgV may still apply.
- Submit a plausible calculation: Incomplete or mixed price details quickly lead to exclusion.
- Ensure transparency: Safety surcharges or unusually low prices must be documented in a comprehensible and reliable manner.
