The amendment of the new public procurement law above and below the EU threshold gives rise to the question of what freedoms exist in the awarding of research and development services (“R & D”) and whether the priorities of the legislator have changed.
The new provision of Section 8 IV No. 6 UVgO reads:
“The contracting authority may award contracts by negotiated procedure with or without a call for competition for the supply of goods or the provision of services for the performance of specialist scientific and technical tasks in the field of research, development and investigation which do not serve to maintain the general operation and infrastructure of a department of the contracting authority.”
First of all, it should be noted that the provision essentially corresponds to the previous Section 3 V lit. c VOL/A. The only difference is that the previous “direct award” is now called “negotiated award” and that such an award can now expressly take place with or without a prior public call for competition. This was not previously regulated so clearly. In principle, however, as before, services that are not intended to be used for general service operations, but specifically for research and development purposes (so-called “R & D services”), may be subject to a negotiated award procedure (with or without a call for competition).
The protection of academic freedom (Art. 5 III GG) applies not only to the free choice of research question and methodology, but also to the practical implementation of research and teaching, including the preparatory and accompanying activities that are directly related to research and teaching. The organization of research and teaching is therefore also protected. This includes in particular the awarding of research and development contracts (R & D).
Anyone who involves individual scientists or a research institution in order to advance parts of a project or investigation through their research or development contributions is making an original scientific decision that may not be regulated as a matter of principle. The right to defend against state interference in the process of gaining scientific knowledge is guaranteed.
However, academic freedom (Art. 5 III GG) is not guaranteed without limits. Other legal interests such as finance/domestic interests etc. set limits. However, the limits of the obligation to general law are in turn set by the minimum level of what is necessary to conduct academic research and teaching.
On the one hand, this means that Art. 5 III GG does not preclude submission to either German or European public procurement law. On the other hand, the application of public procurement law must not lead to a situation in which science-related decisions by research and teaching institutions are prevented and/or the minimum requirements for the implementation of research and teaching are no longer met.
These considerations lead to the following conclusions:
- The legal situation in the context of R & D awards is that certain products and/or methods may be specified in the context of procurement if and as long as they are covered by the original scientific tasks and objectives and the scientists can establish the greatest possible plausibility for the prioritization of these specific procedures or products.
- Confirmation by the scientific decision-makers must be attached to the award notice or the documentation.
- The procurement decision does not necessarily have to be based on unique selling propositions in the narrower sense, but it is sufficient if special processes and products are involved that follow a specific scientific approach.
- The limit of the obligation under public procurement law to open a product-neutral procurement procedure ends where the legal interest of scientific freedom is of overriding importance. It does not necessarily have to be about unique selling points of certain products that represent the yardstick in “normal”, non-scientific procurement procedures. If unique selling points or aspects of technical compatibility were also required for R & D procurements, this special provision of Section 8 IV No. 6 UVgO would be deprived of its essential core.
