The German Federal Public Procurement Tribunal recently rejected AGES Road Charging Services GmbH & Co. KG's (AGES) application for review of a decision, rendered by the Federal Ministry of Transport and Digital Infrastructure, denying its participation in the bidding procedure for Toll Collect GmbH, an operator of the German toll system for heavy goods.
Until now, shares of Toll Collect GmbH have been held by a consortium consisting of several European groups. However, the Transport Ministry intends to exercise a call-option to acquire shares held by the consortium by 1 September 2018, where shares will be awarded to the winner of the on-going invitation to tender.
AGES was not admitted to subsequent negotiations because it submitted a less than adequate reference, in comparison to other candidates, to the Transport Ministry. This reference required documentation that the candidates themselves or a third company nominated by the candidate already had experience with the productive operation of a toll system. AGES objected to the assessment conducted by the Transport Ministry and brought it before the Federal Public Procurement Tribunal at the German Federal Cartel Office (Bundeskartellamt — FCO). The FCO found no errors of law in the Transport Ministry's assessment and rejected the application for review.
According to the FCO, the fact that the contract with the current operator of the German toll system for heavy goods vehicles will expire in 2018 justified the Transport Ministry decision to make experience with the productive operation of toll systems a condition for possible candidates in order to be considered. On the basis of the criteria established by the Transport Ministry it was allowed to exclude AGES from participating in the next stage of the bidding competition. Furthermore, the FCO found no infringement on the Federation's part with respect to the award procedure and the exclusion of AGES itself.
In 2016, collected tolls for heavy goods vehicles on German highways amounted up to EUR 4.6 bn and are expected to rise, as the toll-free use of national roads will end on 30 June 2018. Analysts are of the opinion that this will further increase the already attractive revenues that operators are able to generate in the field of toll collecting. Thus, it will be interesting to see how AGES chooses to respond. AGES does reserve the right to file an immediate appeal against the decision at the Düsseldorf Higher Regional Court, if the appeal is made within two weeks.