„The Bundeswehr as a contracting entity“ · 1.1 Procurement of Equipment, Information...

„The Bundeswehr as acontracting entity“

Federal Offi ce of Bundeswehr Equipment,Information Technology and In-Service Support(FOBwEITISS)

The Bundeswehr as a contractingentity

The Bundeswehr as a Customer

The Bundeswehr is tasked by the constitution (Basic Law) with the duty of providing national defense. In order to be able to accomplish this mission and the resulting tasks, the armed forces must be provided with the necessarycapabilities by making available the equipment required.The task of satisfying the armed forces‘ requirements for materiel and services has been assigned to the Federal DefenseAdministration. The contractsrequired for providing thenecessary equipment to the armed forces are awarded to industry, trade and commerce by the designated authorities of the Federal Defense Administration, taking into consideration thebudgetary and awarding

regulations as well as therelevant administrative guidelines. This brochure „The Bundeswehr as a Customer“ is designed to inform citizens and especially companies interested in obtaining Bundeswehr contracts about the Bundeswehr organization,awarding and contractingprocedures and to serve as a guideline for getting intobusiness. The award ofconstruction contracts is notcovered by this brochure asconstruction projects aremanaged by the financeconstruction agencies of Germany‘s federal states.

3

Prefaceby Harald SteinDirector-General of the Federal Office of Bundeswehr Equipment, Information Technology andIn-Service Support

Source: BAAINBw / Anneken

Contents

Contents

SECTION I - THE PROCUREMENT ORGANIZATION 71. The Federal Defense Administration 81.1 Procurement of Equipment, Information Technology and In-Service Support 101.2 Procurement of Infrastructure, Environmental Protection and Services 142. The Procurement Organization 182.1 Central Procurement 212.2 Decentralized Procurement 28

SECTION II - THE PROCUREMENT PROCEDURES 33 1. Public Procurement Law 342. The Threshold Values 363. Procurement Notices 384. Special Aspects 404.1 Direct Purchasing: A Simplified Awarding Procedure 415. Types of Contract Awarding Procedures 425.1 Types of Award Procedures in the Below-Threshold Sector 435.2 Types of Award Procedures in the Above-Threshold Sector 476. Electronic Tendering in the Bundeswehr 537. EDA Procurement Procedure 55

SECTION III - THE CONTRACTS 561. Contract Terms 571.1 General Terms of Contract 581.2 General Terms of Contract for IT Supplies/Services 591.3 Open-End Contracts 602. Quality Assurance 613. Promotion and Encouragement 623.1 Promotion and Encouragement of Small and Medium-Sized Enterprises 633.2 Promotion and Encouragement of Occupational Therapy 64 Installations and Workshops for the Blind

SECTION IV - SUMMARY AND OVERVIEW 651. Where to Find Contract Notices 662. How to Get a Contract 673. How to ask questions or contact the Bundeswehr as a customer 68

5

Section I:The Procurement Organization

The Federal Defense Administration has been tasked by the constitution (Basic Law) with meeting theimmediate procurement needs of the armed forces.By handling numerous tasks,including barracks management, materiel procurement andimplementation of environmental protection requirements, theAdministration eases the burden on the field units.The Administration is divided into the organizational elements of“Infrastructure, Environmental Pro-tection and Services”, “Equipment, Information Technology andIn-Service Support” and “Personnel”. Civilian personnel also fulfillimportant functions in theadministration of justice in theBundeswehr and in the militarychaplaincy.

7The Procurement Organization

Within the Federal Ministry of Defense (FMOD), there are two departments in charge of Bundeswehr procurement:The Directorate-General for Equipment (E) is responsible for the procurement of defense materiel. It is part of the Federal Defense Administration and provides the armed forces, in a requirements-oriented and cost-efficient manner, with the materiel needed to accomplish their mission.All other procurements needed to meet the armed forces‘ demand are handled by the Directorate-General for Infrastructure, Environmental Protection and Services (IEPS). It is part of the Federal Defense Administration and provides the armed forces, in a requirements-oriented and cost-efficient manner, with the infrastructure and services needed to accomplish their mission.

1. The Federal Defense Administration

8 The Federal Defense Administration

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1.1 Procurement of Equipment

10 Procurement of Equipment

1.1.1 The Directorate-General for Equipment (E) at the Federal Ministry of Defense (FMOD)The Equipment Directorate-General is responsible for the planning, management and supervision of national and international armaments activities in view of the tasks of the Bundeswehr and the capability profile deriving from them. It has overallresponsibility for the procurement and in-service process in theBundeswehr.This also comprises materialresponsibility for the operationalviability of all defense materiel, which lies with the Director-General for Equipment.

The Director-General is at the same time the National Armaments Director (NAD) and as such responsible for the detailed planning of armaments policy in accordance with thestrategic guidelines (Directorate-General for Security and Defense Policy). He/she also represents Germany’s national and defense industry-related interests ininternational bodies.

11A

FOBwEITISS is one of Germany‘s largest technical authorities. It is in charge of providing the Bundeswehr with state-of-the-art equipment and technology, according to demand and in a cost-efficient manner. It is the central authority for the management of all armaments projects, including information technology projects. The following FOBwEITISS directorates are responsible for actualprocurement:

The four directorates, Combat, Land Support, Sea, and Air, are responsi-ble for- the management of complex projects;- systems engineering and integration;- research and technology;- technical/economic aspects of in-service support management;- procurement of the equipment required by each of them, respectively.

1.1.2 The Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support (FOBwETISS)

12 FOBwEITISS

Source: FOBwEITISS / Anneken

IT-related tasks are now handled by the directorates for informationtechnology (Directorate I) and IT support (Directorate G) as well as the Special Organization Herkules.The Bundeswehr InformationTechnology Center (Bundeswehr IT Center) manages tasks relating to IT security, system integration andproject support, as well as theconduct of fi eld trials.A central role in the procurement of commercial and Bundeswehr-specifi c supplies and equipment is played by Directorate E, which also handles the procurement of complex services.FOBwEITISS‘ subordinate agencies include six Bundeswehr technical centers (WTD) and two Bundeswehr research institutes (WIS and WIWeB).

In particular, these agencies areresponsible for:- providing technical advice and support to the project management for components and equipment;- perfoming studies, research and technology tasks, and- perfoming of experiments and analyses.Another subordinate agency is the Naval Arsenal (MArs) which mostly awards repair contracts for the Navy.The Liaison Offi ce for DefenseMateriel USA/Canada (DtVStRü USA/Ka) near Washington D.C.establishes and maintains contacts with the transatlantic partners.

13FOBwEITISS

Staff

Director-GeneralDeputy Deputy

Director- Director-General (civ.) General (mil.)

Deputy Deputy

General (civ.) General (mil.)

OccupationalSafety Officer

PoC for CorruptionPrevention

Commissioner forGender Equality

(civilian)

Commissioner forGender Equality

(military)

Organizational Chart of the Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support (FOBwEITISS)

Legal Affairs Staff

WTD 91

WTD 52

WIWeB

WIS

WTD 41WTD 61 WTD 71

MArs

WTD 81DEU

LiaisonOfficeUSA/CAN

Project Organization

(PMO)

CombatDirectorate

(K)

Air Directorate

(L)

SeaDirectorate

(S)

Information Technology Directorate

(I)

IT Support Directorate

(G)

Technical Quality

Management Center

(T)

Common Technical,

Logistic andEconomic

Tasks(ZtQ)

CentralAffairs

Directorate(ZA)

PurchasingDirectorate

(E)

LandSupport

Directorate(U)

Special Organization

Herkules(H)

1.2 Procurement of Infrastructure, Environmental Protection and Services

14 Procurement of Infrastructure, Environmental Protection and Services

1.2.1 The Directorate-General for Infrastructure, Environmental Protection and Services (IEPS) at the Federal Ministry of Defense (FMOD)

The Directorate-General forInfrastructure, EnvironmentalProtection and Services (IEPS)monitors, bears conceptualresponsibility and providesministerial control for the following areas: infrastructural tasks, such as the construction and operation of sites and garrisons, all servicesrelating to them, messing and MWR food service, as well as statutory protective tasks such as occupational safety and health,environmental protection andfirefighting and protection for the armed forces and the FederalDefense Administration withinGermany, abroad, and in theater.

15IEPS

1.2.2 The Federal Office of Bundeswehr Infrastructure, Environmental Protection and Services (FOBwIEPS)

FOBwIEPS is organized into five di-rectorates and two staff elements and is responsible for all central non-mi-nisterial activities relating to finance, controlling, infrastructure, services, and statutory protective tasks(environmental protection,firefighting and protection,occupational safety and health, and hazardous cargo transportation). FOBwIEPS ‚s subordinateagencies include the Bundeswehr Subsistence Office in Oldenburg, the Bundeswehr Firefighting and Fire Protection Center in Sonthofen and – once the current target

structure has been successfully im-plemented – 41 Bundeswehr Service Centers all over Germany.Furthermore, there are FederalRepublic of Germany offices ofdefense administration in the U.S.A./Canada, Italy, France, Belgium,Poland, the Netherlands and the United Kingdom, each with its own branch offices. Other agencies abroad include the field offices of defense administration providing field units with supplies, counseling, and support in all budgetary andadministrative matters in thecontingents.

16 FOBwIEPS

Source: Bundeswehr / Jenny Bartsch

17FOBwIEPS

Organizational Chart of the Federal Office of Bundeswehr Infrastructure, Environmental

Protection and Services (FOBwIEPS)

Director-General

Deputy Director-General

Central Affairs Bundeswehr Finance and Controlling

Infrastructure Environmental Protection and Occupational

Safety

Services and legal

affairs

7 x Centers of Expertise for Construction Management

Centers of Expertise for Travel

Management

Bundeswehr Firefighting and

Fire Protection Center

Bundeswehr Subsistence Office

Bundeswehr Fire Brigades

7x Federal Republic of

Germany Offices of Defense

Administration Abroad

Field Office of Defense

Administration

41 Bundeswehr Service Centers

2. The Procurement Organization

The satisfaction of the demand of the armed forces and the civilian Bundes-wehr administration for supplies and services is shared among different procurement agencies. Depending on the type of supplies/services required, they are procured either centrally or locally.

18 The Procurement Organization

The procurement and in-service process consists of three pillars. The “Customer Product Management” (CPM) process for the procurement of defense materiel forms the fi rst pillar. The term “CPM” designates aprocedural regulation for determining and meeting the Bundeswehr

demand.The aim is to meet the Bun-deswehr demand for defense materiel faster and in a more cost-effective way by streamlining the pertinent procedures.

19The Procurement Organization

Procurement and in-service process Procurement and innt and in-service processnt and in service process

CPM (amended) Bundeswehr Purchasing

Complex services

The FMOD's Directorate-General for Equipment, Information Technology and In-Service Support has published a brochure to provide information about the amendment of the Customer Product Management process.

(www.FOBwEITISS.de

(English) Projects

CPM CPM (nov.) - English version)

Glossary: Vorlauf Analyse Pre-analysis phase Analyse (Teil 1) Analysis phase (part 1) Realisierung Realization phase Nutzungssteuerung Control of in-service support Nutzung In-service phase Verwertung Disposal Verantwortung Resposibility Generalinspekteur Chief of Defense

Inspekteure Service Chiefs Abteilungsleiter Ausrüstung, Informationstechnik und Nutzung bzw. Präsident Bundesamt für Ausrüstung, Informationstechnik und Nutzung der Bundeswehr

FMOD Director-General for Equipment, Information Technology and In-Service Support or Director-General of the Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support

Industrie (schraffiert: Teilnahme, wenn immer möglich und soweit [vergabe-] rechtlich vertretbar)

Industry (shaded: participation whenever possible and to the extent justifiable by public procurement law)

Abkürzungen Acronyms and Abbreviations GeNu = Genehmigung zur Nutzung GeNu = Approval for service use ZV = Zielvereinbarung ZV = Agreement on objectives AWE = Auswahlentscheidung AWE = Selection decision document LV = Lösungsvorschläge (mehrere) LV = Proposals for solutions (several) FFF = Fähigkeitslücke und funktionale Forderung FFF = Capability gap and functional requirement

document IPT = Integriertes Projektteam IPT = Integrated Project Team Mit einem Flyer informiert die Abteilung Ausrüstung, Informationstechnik und Nutzung des BMVg über die Novellierung des Customer Product Management.

The FMOD's Directorate-General for Equipment, Information Technology and In-Service Support has published a brochure to provide information about the amendment of the Customer Product Management process.

(www.baainbw.de → Projekte → CPM→ Novellierung des CPM)

(www.baainbw.de → Projects → CPM → CPM (nov.) - english version)

The third pillar of the procurement and in-service process comprises complex services, i.e. services that cannot or are not supposed to be provided entirely by the Bundeswehr itself.

This includes services currently provided, for instance, by HIL GmbH (army maintenance logistics), LHBw GmbH (clothing), BwFuhrparkService GmbH (vehicle fleet management) or BWI IT GmbH (IT services).

20 The Procurement Organization

The second pillar of theprocurement and in-service process is procurement for the satisfaction of non-project requirements (Bundes-wehr Purchasing). The responsible agencies procure commercial as well as Bundeswehr-specific supplies, equipment, and services.

This includes the follow-on procu-rement of spare parts for weapon systems/equipment in the in-service phase, procurement via international procurement channels, andinterministerial procurement.

2.1 Central Procurement

Central procurement means that the Bundeswehr‘s entire demand forsupplies and services is jointlydetermined and procured.This results in larger order quantities for combined demand which in turn allow for broad competition and lower prices.Central procurement includes the satisfaction of initial and follow-uprequirements for defense materiel and supplies including repair work for the armed services as well as the award of study, research anddevelopment contracts.

21Central Procurement

2.1.1 Examples of Central Procurement

Central procurement includescontracts concerning initial and follow-up requirements for defense materiel and supplies (vehicles, Air Force and Navy equipment,communications equipment,information technology, weapons, ammunition, missiles, POL, long-life food, etc.) including repair work for the armed services as well asstudies, research and development.

22 Central Procurement

2.1.2 Competent Authorities

Contracts under the centralprocurement procedure are mainly awarded by the following authorities:

The

Federal Office of BundeswehrEquipment, Information Technology and In-Service Support(FOBwEITISS)

Ferdinand-Sauerbruch-Strasse 156073 Koblenz, Germany

Internet: www.baainbw.de

and the

Federal Office of BundeswehrInfrastructure, EnvironmentalProtection and Services (FOBwIEPS)

Fontainengraben 20053123 Bonn, Germany

Internet: www.iud.bundeswehr.de

Subordinate agencies of bothoffices, too, award contracts forcentral procurement.

The Bundeswehr Subsistence Office in Oldenburg, for instance, issubordinate to FOBwIEPS andresponsible for the centralprocurement, storage and supply of long-life groceries and for providing German units deployed abroad with fresh and nonperishable food.


Federal Ministry of Defense

Fontainengraben 15053123 Bonn

Internet: www.bmvg.de

Stauffenbergstraße 1810785 Berlin

In individual cases, central procurement contracts are also awarded by the

Procurement for the Bundeswehr is no longer handled completely by the Bundeswehr itself as the contracting authority. In order to achieve more efficiency and operational readiness, the Bundeswehr is now confined to providing supplies and services which are indispensable core tasks or which it can provide at less cost thancommercial suppliers.

For this reason, the Bundeswehr has entered into public private partner-ships, thus outsourcing part of its tasks to independent companies with government participation. Conse-quently, certain equipment items are procured by separate contracting authorities that are not part of the Bundeswehr.

24 Central Procurement

Source: Bundeswehr

Internet: www.bwbm.de

Procurement, distribution, cleaning and maintenance of Bundeswehr clothing is handled by Bw Beklei-dungsmanagement GmbH.

Heeresinstandsetzungslogistik GmbH (HIL GmbH) is responsible for the procurement of whatever is needed to maintain availability of the land-based Bundeswehr weapon systems. HIL GmbH awards contracts to this end, e.g. for necessary repair andmaintenance work.100 % of shares in HIL GmbH are held by the Federal Republic ofGermany.HIL GmbH is an independentcontracting authority under functional supervision of the FMOD.

Internet: www.hilgmbh.de

BWI Informationstechnik GmbH (BWI IT GmbH) is responsible for any procurement required for the modernization and operation of the Bundeswehr‘s non-militaryinformation and communications technology in the approximately 1,200 Bundeswehr sites andgarrisons in Germany.49.9 % of shares in BWI IT GmbH are held by the Federal Republic of Germany. BWI IT GmbH is anindependent contracting authority under functional supervision of the FMOD.Internet: www.bwi-it.de


BwFuhrparkService GmbH isresponsible for any procurement with regard to vehicle fl eet management and the vehicles managed by it, ranging from commercially available vehicles with and without military equipment to special-duty vehicles.100 % of shares are held by theFederal Republic of Germany.BwFuhrparkService GmbH is anindependent contracting authority under functional supervision of the FMOD.Internet: www.bwfuhrpark.de

Central Procurement26

bwconsulting is a company of the Federal Ministry of Defense (FMOD). We advise the FMOD, the armed forces and Federal Defefnse Adminis-tration on economic and methodolo-gical matters, provide neutral support for comprehensive analyses and offer project management know-how. bw-consulting is committed exclusively to the objectives of the FMOD‘sexecutive level without pursuing any interests of its own and is funded from the defense budget.Internet: www.bwconsulting.de

The Gesellschaft zur Entsorgung von chemischen Kampfstoffen undRüstungsaltlasten mbH (GEKA) works on behalf of the federalgovernment. It has only oneshareholder, the FMOD. GEKA‘s primary responsibility is to safely and sustainably dispose of chemical agents and soil contaminated due to armaments production.Internet: www.geka-munster.de

These contracting authorities publish their invitations to bid not only in the media described under Section II No. 3, but also on their respectivewebsites.

The responsibilities of the Fernlei-tungs- Betriebsgesellschaft mbH (FBG) include the operation of NATO pipeline systems in Germany

• CEPS (Central Europe Pipeline System covering Germany, France and Benelux)

• NEPS (North European Pipeline System covering Germany andDenmark)

as well as the transportation and storage of aviation and ground fuels for NATO forces and, to the extent possible after satisfaction of military demand, civilian customers(mineral oil producers and traders). FBG thus contributes to ensuring a secure supply of aviation and ground fuel to NATO forces in peace, crisis and war.Internet: www.fbg.de

Central Procurement 27

2.2 Decentralized Procurement

Decentralized procurement means that several procurement agencies cover the demand of the regionalsectors of the Bundeswehr formateriel or other types of supplies/services. All products and services for which central procurement isinappropriate because of their nature or for economic reasons are subject to decentralized procurement. These are mainly commercial items ofsupply for the daily demand of the units, garrisons and the localelements of the Federal DefenseAdministration.

28 Decentralized Procurement

Source: Bundeswehr / Holzbrecher

2.2.1 Examples of Decentralized Procurement

These are mainly commercial items of supply for the daily demand of the units, garrisons and the localelements of the Federal DefenseAdministration.

These include:

• consumables for the maintenance of billets, sites and garrisons (hardware, special oils, fertilizers);

• terrain maintenance equipment, facility housekeeping and domestic equipment (e.g. agricultural equipment, furniture, mattresses, bedding, flags, coffee machines, all-purpose slicers);

• spare parts for commercial items;

• guard and cleaning services.

29Decentralized Procurement

2.2.2 Competent Authorities in Decentralized Procurement

First and foremost, decentralizedprocurement is handled byFOBwIEPS‘ subordinate Bundeswehr Service Centers in their capacity as local authorities of the FederalDefense Administration.

With regard to staff and material, they are responsible for the direct support of and supply to the armed forces and defense administration agencies.

For an overview of Bundeswehr service centers (in German), see

http://www.iud.bundeswehr.de > Organisation > Bw-Dienstleistungszentren

The field offices of defenseadministration and the offices of defense administration abroad, too,

handle procurement for part of their own demand themselves.

For an overview of field offices and offices abroad (in German), see http://www.iud.bundeswehr.de > Organisation > BwVSt oder Einsatzwehrverwaltungsstellen

Agencies and institutes subordinate to FOBwEITISS award research and study contracts within the scope of their technical responsibilities, as well

as procurement and maintenance contracts to meet their own demand for basic equipment, consumables, and test rigs/tools.


Bundeswehr Technical Center for Land-Based Vehicle Systems, Engi-neer and General Field Equipment(WTD 41)

Trier

Bundeswehr Technical Center for Aircraft and Aeronautical Equipment(WTD 61)Manching

Bundeswehr Technical Center for Information Technology and Elect-ronics(WTD 81)Greding

Bundeswehr Research Institute for Protective Technologies and CBRN Protection(WIS)Munster

Naval Arsenal(MArs)Wilhelmshavenund Kiel

Bundeswehr Technical Center for Protective and Special Technolo-gies(WTD 52)Oberjettenberg

Bundeswehr Technical Center for Ships and Naval Weapons, Ma-ritime Technology and Research(WTD 71)

Eckernförde

Bundeswehr Technical Center for Weapons and Ammunition(WTD 91)Meppen

Bundeswehr Research Institute for Materials, Fuels and Lubricants(WIWEB)Erding

Liaison Office forDefense MaterielUSA/Canada(DtVStRü USA/Ka) Reston VA USA

31Decentralized Procurement

For the agencies‘ homepages and organizational charts (in English), see

http://www.baainbw.de/ (English) > About us > Agencies

Under certain conditions and ifdictated by expediency, operational readiness and cost effectiveness requirements, the armed forces are

able and authorized to undertake procurement activities themselves.


Section II:The Procurement Procedures

When awarding contracts, theBundeswehr as a contractingauthority has to comply with budget and contract awarding regulations. In other words, it is only very rarely allowed to award contracts directly to a certain company becauseprocurement, as a rule, has to take place on a competitive basis.This means that companies will only be awarded a contract if they participate in the respective bidding procedure. This section will explain how bidding works. See No. 3 for a description of where to find the latest invitations to bid.

33Procurement Procedures

1. Public Procurement Law

Public procurement law comprises the regulations with which acontracting authority has to comply in awarding contracts. German public procurement law primarily consists of elements of budget law andEuropean directives that have beentransposed into a number of German laws and regulations.

34 Procurement Procedures

As this brochure went to press, German public procurement law for supplies and services as the most

relevant law for the Bundeswehr as a customer comprised the following components:

Public procurement law stipulates two objectives for the Bundeswehr as a customer: maintaining costeffectiveness and economic viability, and ensuring competition.As a rule, VgV or VOL/A apply to the award of supply and service contracts with VOL/A being authoritative in the below-threshold sector (see No. 2 below). In exceptional cases,however, such services may beprocured by application of VSVgV.

VSVgV applies if the supplies orservices to be procured exceed acertain contract value (see No. 2 below) and relate to the delivery of equipment that is either military innature, required under a classified contract, or needed for specificmilitary purposes.


Structure of German public procurement law for supplies and services provided to the Bundeswehr*

BHO = Federal Budget Code, spec. Art. 55 VV-BHO = administrative instructions to BHO VOL/A = Conditions Concerning Contracts for Supplies

and Services

GWB = Act against Restraints of Competition VgV = Regulation on the Award of Public Contracts VSVgV = Regulation on the Award of Public Contracts in

the Fields of Defense and Security

* excluding Statistics Regulation and concessions

Below-threshold sector Above-threshold sector

Budget law, in particular:

BHO

VV-BHO

VOL/A

Remedies Directive 89/665 EWG

Public Procurement

Directive 2014/24/EU

Defense Procurement

Directive 2009/81/EC

GWB

VgV VSVgV

2. The Threshold Values

Which regulations apply to an award procedure depends on the so-called threshold values.Threshold values are limits thatdetermine whether national(below-threshold sector) or European award regulations (above-threshold sector) apply. The parameterrelevant here is the estimatedcontract value of a procurement, including all options but excluding turnover tax.


These threshold values are updated every two years by a regulation of the EU Commission.

At the moment and until 31 Decem-ber 2017, the following threshold values apply:

Application of VSVgV 418.000 EUR

Application of VgV 209.000 EUR

For higher and supreme federal 135.000 EUR authorities with exceptions

For defense supplies only those listed in Annex III of Directive 2014/24/EU

A Europe-wide notice is required only for contracts with an estimated contract value equal to or higher than these threshold values; in thesecases, European anti-trustregulations apply.

This does not mean, however, that only German or German-basedbusinesses may participate innational tenders. The term “national” refers merely to the way theinvitation to bid is announced and to the awarding scheme based onGerman budget law.


3. Procurement Notices

As a rule, the current Bundeswehr requirements for supplies andservices with a contract value equal to or exceeding the applicablethreshold value are announced in the Supplement to the Official Journal of the European Union under:

Invitations to bid for these contracts – as well as contracts of a value below the applicable threshold – are also published in the Federal Administration‘s central online portal

http://ted.europa.eu


http://www.bund.de


In this portal, companies interested in doing business with the Bundeswehr can find out about current invitations to bid to which they might submit an offer. The Bundeswehr does not keep “bidders lists” with the intention of automatically informing the listed companies of new notices in theinternet portals, although businesses

may set up automated notifications on the above-mentioned webportals.“Initiative offers” not relating to a published invitation to bid cannot be accepteded by the Bundeswehr.

4. Special Aspects


Purchases below a value of 500 EUR excluding turnover tax may be made without a formal award procedure.However, even without a formal award procedure, the contracting authorities are obliged to award contracts taking into account the principles of cost effectiveness and economic viability, i.e. by comparing competing offers, and to conclude them based on their own general terms of contract (see Section IIINo. 1).

4.1 Direct Purchasing: A Simplified Awarding Procedure


5. Types of Contract Awarding Procedures

The customer is not free to choose the type of contract awardingprocedure for its procurementprojects. First and foremost, theapplicable type of procedure depends on whether the estimated contract value exceeds the applicablethreshold value and whether the purchase is covered by VOL/A, VgV or VSVgV.If the estimated contract value is below certain thresholds,procurement may be made without a strictly formalized awardprocedure, although all otherawarding and budgetary regulations still have to be observed.


With regard to the below-threshold sector, the provisions of VOL/A *)apply. This regulation stipulates that as rule, contracts must be awarded by means of Public Competitive Bidding. If certain conditions are met, another two types of procurement are available to the customer: Restricted Bidding and Negotiated Contracting.

*) in the future: UVgO(Below-Threshold AwardingRegulation)

5.1 Types of Award Procedures in the Below-Threshold Sector


In a Public Competitive Bidding procedure, the customer publishes an invitation to bid, and an unlimited number of companies can submit offers.

The companies interested in thebedding have to submit their bid within the specified deadline. The bid will then be evaluated by thecustomer based on qualification and award criteria which have been announced beforehand. Out of those bids that meet the requirements in form and content, the mostcost-efficient bid is selected.

5.1.1 Public Competitive Bidding

streng formale Verfahrensführung

Bekanntmachung

UnbeschränkterBieterkreis

Keine Verhandlungsspielräume


Glossary: Bekanntmachung Public announcement by contract notice Unbeschränkter Bieterkreis Unlimited set of bidders Keine Verhandlungsspielräume No leeway for negotiations Streng formale Verfahrensführung Strictly formal procedure

The contracting authority mayconduct a Restricted Biddingprocedure in cases where, forinstance, exceptional competence is required to perform a service.Once the notice has been published and a Request for Interest procedure conducted, only a limited number of bidders are invited to submit offers.

Out of those bids that meet therequirements in form and content, the most cost-efficient offer is selected.

5.1.2 Restricted Bidding

streng formale VerfahrensführungSpielräume

Bekanntmachung BeschränkterBieterkreis

Keine Verhandlungs-spielräume

Teilnahmewettbewerb


Glossary: Bekanntmachung Public announcement by contract notice Teilnahmewettbewerb Request for Interest by publication of a contract notice Beschränkter Bieterkreis Limited set of bidders Keine Verhandlungsspielräume No leeway for negotiations Spielräume Leeway Streng formale Verfahrensführung Strictly formal procedure

Negotiated Contracting may take place if, for instance, PublicCompetitive Bidding yielded noeconomically viable result or aninsignificant repeat order is required.

The customer approaches a number of companies, if possible, to invite them to submit an offer, the content of which may then be subject tonegotiations. If applicable, a Request for Interest procedure will be held beforehand.

5.1.3 Negotiated Contracting

weitgehend „formfreies“ Verfahren

BeschränkterBieterkreis

VerhandlungsspielräumeKeine Bekanntmachung


Glossary: Keine Bekanntmachung No announcement by contract notice Beschränkter Bieterkreis Limited set of bidders Verhandlungsspielräume Leeway for negotiations Weitgehend „formfreies“ Verfahren Mostly “informal” procedure

With regard to the above-threshold sector, the provisions of VgV and/or VSVgV apply.Within the scope of VgV, thecontracting authority is free to choose between the Open Procedure and the Restricted Procedure, the latter including a Request for Interest.Under certain conditions, another three award procedures are available to the customer: the NegotiatedProcedure with or without a Request for Interest by publication of acontract notice, the CompetitiveDialog, and the Innovation Partner-ship.As a rule, VSVgV allows for theRestricted Procedure and theNegotiated Procedure with a Request for Interest. In addition, the customer may – under certain circumstances– conduct a Negotiated Procedure without a Request for Interest, or a Competitive Dialog.

5.2 Types of Award Procedures in the Above-Threshold Sector


Under the Open Procedure, the customer publishes an invitation to bid, and an unlimited number of companies can submit offers(cf. VgV Art. 15; GWB Art. 119). The companies interested in bidding have to submit their bid within the specified deadline. The bid will then be evaluated by the customer based on qualification and award criteria which have been announced beforehand.

Out of those bids that meet the requirements in form and content, the most cost-efficient offer is selected. Offers that include changes to the contract award documents – particularly with regard to the requirements for the supplies/services specified in the statement of work or the contract – will be disregarded.

5.2.1 The Open Procedure

streng formale Verfahrensführung

Bekanntmachung

UnbeschränkterBieterkreis



Glossary: Bekanntmachung Public announcement by contract notice Unbeschränkter Bieterkreis Unlimited set of bidders Keine Verhandlungsspielräume No leeway for negotiations Streng formale Verfahrensführung Strictly formal procedure

Under the Restricted Procedure, only a limited number of bidders are invited to submit offers once the notice has been published and a Request for Interest procedure conducted (VgV Art. 16 and VSVgV Art. 11; GWB Art. 119). Out of those bids that meet the requirements in form and content, the most cost-efficient offer is selected.

Offers that include changes to the contract award documents – particularly with regard to the requirements for the supplies/services specified in the statement of work or the contract – will be disregarded.

5.2.2 The Restricted Procedure

streng formale VerfahrensführungSpielräume


Keine Verhandlungs-spielräume

Teilnahmewettbewerb


Glossary: Bekanntmachung Public announcement by contract notice Teilnahmewettbewerb Request for Interest by publication of a contract notice Beschränkter Bieterkreis Limited set of bidders Keine Verhandlungsspielräume No leeway for negotiations Spielräume Leeway Streng formale Verfahrensführung Strictly formal procedure

Within the scope of VgV, the contracting authority may conduct a Negotiated Procedure with a Request for Interest if, for instance, an Open or a Restricted Procedure or a Competitive Dialog only yielded offers which had to be disregarded. However, this is only admissible if no significant changes are made to the original terms of contract. Within the scope of VSVgV, on the other hand, this is one of the standard procedures.According to both VgV and VSVgV, a Negotiated Procedure without a Request for Interest is admissible only in certain exceptional cases, for instance if an Open or Restricted Procedure yielded no economicallyviable result or when additional

deliveries are required where a change in supplier might lead to technical inconsistencies in the system.Under the Negotiated Procedure, only a limited number of bidders are invited to submit offers once the notice has been published and a Request for Interest procedure conducted (if applicable). The submitted offers will then be negotiated. Unless specifically ruled out by the customer, the subject of performance, the price and any other contract terms may be subject to negotiation. Once the best and final offers have been submitted, these offers turn into the basis for the Competitive Dialog.

5.2.3 The Negotiated Procedure

Spielräume


Verhandlungenggf. Teilnahmewettbewerb


Glossary: Bekanntmachung Public announcement by contract notice Ggf. Teilnahmewettbewerb Request for Interest by publication of a

contract notice, if applicable Beschränkter Bieterkreis Limited set of bidders Verhandlungen Negotiations Spielräume Leeway Bekanntmachung Public announcement

The Competitive Dialog is an award procedure that may be used by the contracting authority only in rare exceptional cases as it is subject to very strict prerequisites. (VgV Arts. 14 and 17 and VSVgV Art. 13; GWB Art. 119)

The Competitive Dialog may be applied only in cases where especially complex contracts are to be awarded and only if the customer is objectively unable to specify• either the technical means by which the customer‘s requirements and objectives may be met, or• the legal and financial conditions of the project.

5.2.4 The Competitive Dialog

Gestaltungsspielräume Streng formale Verfahrensführung

Teilnahmewettbewerb

Bekanntmachung Dialogphase



Glossary: Bekanntmachung Public announcement by contract notice Dialogphase Dialog phase Teilnahmewettbewerb Request for Interest by publication of a contract notice Keine Verhandlungsspielräume No leeway for negotiations Gestaltungsspielräume Scope for action Streng formale Verfahrensführung Strictly formal procedure

Within the scope of VgV (but not VSVgV), the contracting authority may use the Innovation Partnership procedure if the relevant requirements are met (cf. VgV Art. 19, GWB Art. 119).The Innovation Partnership is a procedure for the development of innovative supplies and services that are not yet available on the market; the resulting products will then be purchased by the customer. By means of a public notice, the contracting authority calls for requests to participate. Suitable candidates are then requested to submit an offer. Contracting authority and bidder then undergo several phases of negotiations regarding submitted research and innovation projects to improve the content of

the offers. Minimum requirements and award criteria are not subject to negotiation. The launch of an Innovation Partnership is marked by the acceptance of offers of one or more bidders, each of whom will conduct separate R&T activities. The partnership comprises two consecutive phases: 1. research and development phase (e.g. prototype production);2. performance phase (delivery of the product (newly) developed within the partnership).Each phase is subdivided by intermediate objectives. Advancement of the Innovation Partnership and remuneration payments both depend on the achievement of these milestones.

5.2.5 The Innovation Partnership


Glossary: Bekanntmachung Public announcement by contract notice Teilnahmewettbewerb Request for Interest by publication of a contract notice Beschränkung Bieterkreis Limitation of set of bidders Verhandlungen Negotiations Zuschlag Contract award F&E Phase R&D phase

6. Electronic Tendering in the Bundeswehr

With the legislative package modernizing European public procurement law, the European legislator has issued a thoroughly revised set of rules for the award of government contracts and concessions. The regulations have been transposed into German law in a timely manner and since 18 April 2016 have had an impact on contract awards by the Bundeswehr as a contracting authority. This has immediate implications for contracts above the EU threshold values. Besides the structural changes that have been implemented, electronic tendering is now mandatory for contracts awarded under GWB or VgV and VSVgV provisions.


GWB Art. 97 para. (5) stipulates that customers and businesses shall, as a rule, use electronic means in accordance with the applicable regulations on the award of public contracts to send, receive, forward and save data in an award procedure. According to VgV Arts. 9 to 11, these electronic means and their technical characteristics shall be generally available, non-discriminatory, and compatible with prevalent information and communications equipment and programs. They shall feature one uniform data exchange interface and must not restrict companies‘ access to the award procedure. In addition, these means shall ensure data integrity, confidentiality, and authenticity.The use of electronic means is required not only for digital contract notices, but also for contract award documents, bidder‘s questions and replies to them, as well as for the digital submission of offers. All these guidelines will be implemented step by step.

• As of 18 April 2016, all announcements for contract opportunities in accordance with VgV and VSVgV have to be made digitally. Contract award documents shall be made available to bidders free of charge, without restrictions, completely and directly; companies must not be required to register.• As of 18 April 2017 (FOBwEITISS) or 18 October 2018 (subordinate agencies), respectively, digital offers have to be accepted.

According to VgV Art. 11 para. (3), the contracting authority is obliged to make available to companies all necessary information regarding

1. the electronic means used in an award procedure;2. the technical parameters for the submission of requests to participate, offers and expressions of interest by electronic means, and3. the encryption and time recording procedures used.

The Bundeswehr makes use of the “Al Vergabemanager” software in conjunction with the e-tendering platform of the federal government. This is meant to ensure compliance with the new standards regarding public procurement law. Direct access to the e-tendering platform of the federal government is not required. “Al Vergabemanager” provides a connection to the federal e-tendering platform and supports legally compliant communication with companies. This allows for a seamless and fully electronic award procedure.


7. EDA Procurement Procedures

The European Defense Agency (EDA), currently consisting of 27 out of 28 European member states, was established in July 2004. The EDA was set up to create a common competitive European defense market. To achieve this aim, it conducts or supports cooperative European defense projects and supports research and technical development as well as the European defense technological base. The agency also awards contracts itself. Publications, further information on EDA and bidding procedures are available for viewing under

http://www.eda.europa.eu/procure-ment-gateway


Section III THE CONTRACTS

The wording of contracts is not subject to public procurement law, but to the so-called private law in the German Civil Code (BGB). Public procurement law only rarely has implications for contract terms or the execution of contracts.For the Bundeswehr as a customer, contract terms are subject to certain rules and regulations, such as for IT procurement and open-end contracts.The Bundeswehr also makes use of different options to support certain market participants.

56 Contracts

1. Contract Terms

The drafting of contracts is based on the principle of freedom of contracts. There are no special legal provisions in private law governing the contents of contracts with contracting authorities with which the Bundeswehr would need to comply.

57Contracts

When contracting, the procuring agencies are, however, encouraged to comply with the principles of cost effectiveness and economic viability laid down in the Federal Budget Code and follow uniform administrative guidelines in accordance with the principle of self-commitment of the administration. This ensures comparability of offers and prevents arbitrary unequal treatment in contracting.For this reason, there are usually a number of preprinted, standardized contract terms which are included in contracts on a case-by-case basis and which, as a rule, are already part of the contract award documents.Bidders‘/contractors‘ general terms and conditions are not accepted.

The general contract terms of the Bundeswehr are composed of

• general terms of contract: - VOL/B (General Terms of Contract for the Provision of Supplies and Services)• additional terms of contract in the defense sector: - ZVB/BMVg (Additional Terms of Contract of the Federal Ministry of Defense Implementing VOL/B)• supplementary terms of contract for non-IT supplies/services: - ABBV (General Terms and Conditions for Procurement Contracts Placed by the Federal Ministry of Defense) - ABEI (General Terms and Conditions for Development Contracts with Industrial Firms) - ABFI (General Terms and Conditions for Research Con tracts with Industrial Firms)

1.1 General terms of Contract

FOBwEITISS‘ contract terms are available for viewing under

http://www.baainbw.de/ (English) > Contract Award > Forms > Contract Terms

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Since 1972, different types of “Spe-cial Terms of Contract for the Procu-rement of DP Services” (BVB) have been introduced to specify require-ments for public procurement of data processing equipment. The following are still applicable today: - BVB - Miete (rental) - BVB - Planung (planning)

Meanwhile, new “Supplementary terms of contract for the procurement of IT supplies/services” (EVB-IT) have been developed to replace the BVB regulations: - EVB-IT Systemlieferung (system delivery) - EVB-IT System - EVB-IT Erstellung (creation) - EVB-IT Kauf (purchase) - EVB-IT Dienstleistung (service) - EVB-IT Überlassung Typ A (transfer contract, type A) - EVB-IT Überlassung Typ B (transfer contract, type B) - EVB-IT Instandhaltung (hardware maintenance) - EVB-IT Service - EVB-IT Pflege S (standard software maintenance)

1.2 General Terms of Contract for IT Supplies/Services

The contract terms are available for viewing under

http://www.cio.bund.de/ > IT-Beschaffung > EVB-IT und BVB (in German)

59contracts

Open-end contracts are contracts between one or more customers and one or more contractors that specify the terms, such as prices, delivery deadlines, etc., for individualcontracts to be placed within aspecified timeframe. There is nospecial award procedure for open-end contracts. Instead, any of theabove-mentioned award procedures may be used for the conclusion of such contracts.

Procuring goods through open-end contracts reduces the administrative workload. Open-end contracts are frequently used for repetitiveprocurements, e.g. the delivery of consumables or supplies such as POL and medicine, or services such as maintenance and repair.

1.3 Framework Contracts / Framework Agreements

60 Contracts

2. Quality Assurance

Quality assurance of defense mate-riel comprises the following essential processes for business transactions with commercial contractors:

- evaluation of contractor quality capability;- contractual agreement of contractor quality assurance requirements;- based on the “NATO Allied Quality Assurance Publications” (AQAP);- additional QA requirements on a statutory basis, if applicable;

- contractual agreement of the con tracting authority‘s right to perform government quality assurance; i.a.w. VOL/B Art. 12, government quality assurance means inspection of supplies/services for compliance with the contractually agreed technical and associated organizational requirements;- performance of government quality assurance, as well as - quality inspections based on legal requirements.

61Contracts

3. Promotion and Encouragement

62 Contracts

It has always been a particularconcern of the Bundeswehr to take small and medium-sized enterprises (SME) into account when placing public contracts. Wide involvement of these firms promotes competition and helps to put innovative products on the market. The majority ofBundeswehr contracts are awarded to SME. A large number of these firms are directly involved in thesupply of consumables, maintenance and other services.Within the scope of the promotion of small and medium-sized enterprises, possible competitive disadvantages of small and medium-sizedenterprises compared to bigenterprises have to be compensa-ted when contracts are awarded, for instance by breaking down supplies/services into lots or by encouraging subcontracting for complexlarge-scale contracts.

3.1 Promotion an Encouragement of Small Medium-sized Enterprises

63Contracts

Articles 141 and 143 of the Social Code, Book 9 (SGB IX), stipulate that occupational therapy installations and workshops for the blind be givenpriority with respect to publiccontracts which they are able to execute.To this end, the Federal Government enacted the directives for theconsideration of occupational therapy installations and workshops for the blind in connection with the award of public contracts, dated 10 May 2001 (BMWi I B 3 - -26 23 55 of 10 May 2001, Federal Gazette No. 109 of 16 June 2001, page 11 773). According to these directives, occupational therapy installations and workshops for the blind must be awarded the contract in national award procedures in accordance with VOL/A if their bid price does not exceed the price of the most economic bidder by more than 15 percent.

3.2 Promotion and Encouragement of Occupational Therapy Installations and Workshops for the Blind

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Section IVSummary and Overview

65Summary and overview

1. Where to find Contract Notices

Stay up to date on Invitations to Bid by reading the relevant publication platforms, such as

http://ted.europa.eu

and

http://www.bund.de

- see pages 38 / 39 -

66 Summary and overview

2. How to get a Contract

• If there is an Invitation to Bid for the relevant contract:

By participating in the respective award procedure.

- see pages 42-55 -

• If the contract can be awarded directly:

By obtaining information from the contracting authority in question

- see pages 10-32 -

67Summary and overview

3. How to ask questions or contact the Bundeswehr as a customer

By e-mail:

[email protected]

68 Summary and overview

Issued by:Federal Office of Bundeswehr Equipment, Information Technology andIn-Service Support (FOBwEITISS)Branch J1Ferdinand-Sauerbruch-Str. 156073 Koblenz, Germany

E-Mail: [email protected]: Daniela AnnekenInternet: http://www.baainbw.de/Printed by: FOBwEITISS - ZA4.4

Last amended: September 2017

69Imprint

„The Bundeswehr as a contracting entity“ · 1.1 Procurement of Equipment, Information...

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