According to Lockheed Martin, the procurement senate of the Düsseldorf Higher Regional Court (OLG) has fully confirmed the illegality of the cancellation of the procurement procedure for the heavy transport helicopter (STH). In its decision of December 15, the Higher Regional Court found that Lockheed Martin's offer price only slightly exceeded the estimated total costs for procurement and operation, the company wrote in a statement. In addition, the court found the estimate of the procurement costs made by the Federal Ministry of Defense (BMVg) to be incomprehensible and unrealistically low in relation to the special equipment required for the helicopters for several reasons.
At the same time, the Higher Regional Court confirmed the verdict of the Federal Cartel Office's Procurement Chamber in the spring, according to which the cancellation of the tender was effective - even though the bidders' rights were violated. This means that the aborted procedure no longer needs to be resumed and the way for a new approach to acquiring the helicopters should be clear.
The first procurement chamber of the Federal Cartel Office ruled in March that the cancellation of the procedure for procuring an STH for the Bundeswehr was illegal, but was also legally effective. The illegality was justified at the time by the fact that the Bundeswehr's estimate of the procurement costs for the helicopters, which formed the basis for the budget application, was not comprehensibly documented.
Both Lockheed Martin, the company represented in the competition with the CH-53K helicopter model, and the BMVg lodged an appeal against this ruling, so that the case had to be finally heard by the Düsseldorf Higher Regional Court. By going before the Higher Regional Court, Lockheed Martin reportedly wanted to ensure final legal certainty and a fair and transparent procurement process. The BMVg had previously surprisingly canceled the procurement process for the heavy transport helicopter, which had been initiated in February 2019, in September last year. Lockheed Martin, on the other hand, had submitted an application for a review of the legality of the cancellation decision to the public procurement chamber.
“The Higher Regional Court did not consider it necessary to order the client to continue the original procurement process as long as there was no evidence of one-sided, arbitrary preference for a competitor in the government purchase process that was initiated instead,” the company wrote in the statement. It refers to the Foreign Military Sales (FMS) procedure apparently initiated by the federal government, in which the US government acts as a business partner and not the helicopter manufacturer.
„Wir sind in unserer Auffassung, dass der damalige Abbruch des Verfahrens unbegründet war und nicht durch überhöhte Angebotspreise der Bieter verursacht wurde, vollends bestätigt worden“, kommentiert Dennis Göge, stellvertretender Europachef bei Lockheed Martin, die Entscheidung. Der Bund hätte seiner Auffassung zufolge auch im damaligen Beschaffungsverfahren seine Anforderungen an die zur Verfügung stehenden Haushaltsmittel anpassen können.
“The court also ordered the client to select a bidder in the FMS process on the basis of realistic demands,” Göge continued. He is confident that the CH-53K will best meet the requirements when procuring and operating a fleet of commercially available transport helicopters with the available budget resources in the FMS procedure.
In its preliminary budget draft for the coming year, the federal government, which left office, set aside commitment appropriations amounting to around 5.2 billion euros for the period 2023 to 2030 in the summer in order to procure a heavy transport helicopter. It remains to be seen whether this budget approach will also be supported by the new government. In the past, however, it was usually the case that fiscal planning was continued for the new executive's first year in office.
According to Lockheed Martin, the BMVg is considering foregoing the originally planned complex modifications as part of the FMS program. Such a program envisages the purchase of the market-available (Military-Off-The-Shelf (MOTS)) version of an aircraft.
The basic version of the CH-53K covers all of the Bundeswehr's relevant mission requirements and already has essential capabilities such as aerial refueling and a higher performance spectrum as standard, the company writes. In particular in the area of armed search and rescue, the Bundeswehr's requirements and NATO obligations could be met with a fleet of 44 aircraft.
Lockheed Martin's only competitor at the STH is the US aircraft manufacturer Boeing with the CH-47. When contacted, a Boeing spokesman said that his company was waiting for further information on the further progress of the procurement process.
Editor / lah
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