Award­ing con­tracts in the open house mod­el and legal pro­tec­tion for bid­ders*.

Health insur­ers are increas­ing­ly bid­ding on the open-house mod­el. Dis­count con­tracts are par­tic­u­lar­ly affect­ed. Phar­ma­ceu­ti­cal com­pa­nies are — right­ly — ask­ing for legal pro­tec­tion. Some hints.

Open house mod­el — what is it?

Accord­ing to the now pre­vail­ing opin­ion, the con­tract­ing author­i­ty must make a selec­tion deci­sion in order for pub­lic pro­cure­ment law to apply. This is lack­ing in open house mod­els. Indeed, dur­ing the term of an open house pro­cure­ment, the Fund under­takes to enter into a con­tract with each eco­nom­ic oper­a­tor who, in turn, under­takes to pro­vide the sup­plies in ques­tion on pre­de­fined terms. And this with­out mak­ing any fur­ther selec­tion among the inter­est­ed bid­ders and with the per­ma­nent­ly exist­ing pos­si­bil­i­ty for inter­est­ed com­pa­nies to join the open house sys­tem dur­ing the term. And not only dur­ing an “entry phase”, as the ECJ states, but dur­ing the entire term (see ECJ, judg­ment of 2.6.2016, Case C‑410/14). All that is required, accord­ing to the ECJ, is a notice “enabling poten­tial­ly inter­est­ed eco­nom­ic oper­a­tors to take due note of the course and essen­tial fea­tures of an approval pro­ce­dure such as that at issue in the main pro­ceed­ings” (ECJ, judg­ment of 2.6.2016, Case C‑410/14).

Con­se­quences for review under pro­cure­ment law

The linch­pin is first whether a selec­tion deci­sion has been made. If this is not the case, and if the con­tract is oth­er­wise award­ed on the basis of the open house mod­el, the con­tract review author­i­ties are unlike­ly to have juris­dic­tion.

It must be clar­i­fied whether, in the indi­vid­ual case, pro­cure­ment is actu­al­ly car­ried out by way of the open house mod­el or whether the health insur­ance fund in ques­tion has cho­sen a false des­ig­na­tion, i.e., in sub­stance, for exam­ple, con­cludes a gen­uine frame­work agree­ment sub­ject to pro­cure­ment law, the award of which can also be reviewed by the pro­cure­ment review bod­ies.

This will have to be dis­cussed at least if the rebate con­tract is to be designed in such a way that, pure­ly for eco­nom­ic rea­sons, it is actu­al­ly only pos­si­ble for a lim­it­ed num­ber of bid­ders to join the open house mod­el. How­ev­er, this may also be the case if bid­ders are sim­ply told that they will not be admit­ted. In both cas­es, the ques­tion aris­es as to whether a “veiled selec­tion deci­sion” is not being made.

Review by oth­er juris­dic­tions

Irre­spec­tive of this, it must be checked in each indi­vid­ual case whether the spe­cif­ic selec­tion made, for exam­ple, by a physi­cian or phar­ma­cist, is legal­ly sound. This can then also be con­trolled by the courts, if nec­es­sary in sum­ma­ry pro­ceed­ings. Civ­il and/or social juris­dic­tion is addressed here.

There is also the ques­tion of whether licen­sure under the open-house mod­el can be con­trolled by the civ­il and/or social courts. Bid­ding com­pa­nies may have to break new ground here.