Serious allegations against the BVG in court

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Under Stadler Pankow subways are mounted. The BVG would also like to have the next generation of vehicles built there, but they are still not allowed to place the order.Photo: Imago Images / Ulli Winkler

BerlinThe Berliner Verkehrsbetriebe (BVG) would like to buy up to 1500 subway cars. However, the national company may not continue to grant the major order, because the long-simmering lawsuit over the planned contract now continues. The first hearing before the Kammergericht Berlin ended on Friday afternoon without a decision. Exciting were the hours in court but after all. Alexander Csaki, lawyer for the railway manufacturer Alstom of the firm Bird & Bird, made serious allegations against the BVG. It acted "on the border of what was permissible under public procurement law".

There were quite a few on the spectators' seats, whose belief in the rule of law got a crack. "If a court does not deal with such violations – who then?" Was heard. Alstom has brought up issues that contradict the rules of public procurement law, which prohibit bargaining. The court simply wiped away these reports.

23 complaints – all unsuccessful

The court building at SchOneberger Kleistpark was about the largest procurement in the 90-year history of the BVG. In order to alleviate the shortage of modern rail vehicles in the growing city of Berlin, the company wants to raise up to 1,500 subway cars – welcoming passengers who complain about full and unfashionable trains.

Two and a half years after the start of tendering, the BVG Supervisory Board ratified the decision in May: Stadler Pankow is to receive the order, which has been calculated for three billion euros. In late 2021, it was said, the first pre-series trains of the new underground generation could roll through the city. But it turned out differently.

As reported, the German offshoot of the French railway manufacturer Alstom moved in front of the Procurement Chamber of the country. When it rejected the request for review at the end of July, the group went to the next instance. And so the case landed under the file number Verg 7/19 at the Berlin Court of Appeals.

In Room 449, where the kitchen clock above the door did not quite fit with the putti, paintings, and venerable wood paneling, Cornelia Holldorf came quickly to the point. With soft but definite words, the Chairwoman of the Vergabesenat made it clear that she did not attribute any chance of success to any of the 23 complaints made by Alstom.

Nice tips from the client

In many cases, the company would have had to complain about the facts earlier, in other Holldorf saw no legal violation. Just under an hour after the beginning of the trial, it was foreseeable that the court would reject the petition for review – in the last instance, because a revision is not possible.

Even with issues that were unbelievable to viewers, the judge did not spend much time. This included the allegation that the SNB had asked Alstom to reduce the price offer by ten to fifteen percent in order to improve its own chances. Other bidders wanted less money. This statement had fallen during a negotiation round, said Alstom lawyer Csaki later.

In no case had the company been asked to adjust the price, said a lawyer from one of the two law firms that had been hired by the BVG. The Alstom offer was simply "questioned" because in comparison a "conspicuousness" had become clear – a difference of 10 to 15 percent compared to other prices.

Nevertheless, the fact that the BVG gave the company Alstom some kind of indication of the price, left a strange aftertaste. Because in this case, there is the unusual constellation that the two companies are managed by siblings. Sigrid Nikutta is currently the CEO of the BVG (on the jump to the board of directors), JOrg Nikutta is head of Germany Alstom. Again and again, both companies emphasized that they are careful to ensure that no inadmissible information is exchanged. "When the subway procedure on the board came up, Ms. Nikutta left the room for so long," it said at the BVG.

Procedure should be reopened

Alstom also reported that the BVG had pointed out that it also offered better quality in one respect. It was about the traction, so the drive, the new subways. According to Csaki it said, "Then you have better chances." In this case it was a call, said the lawyer.

The telephone record, which is not documented in the file, is a deficiency that can only be remedied by re-rolling the whole subway process (which would delay delivery of the first trains by 2025 or 2026). The fact that the BVG had telephoned with a bidder off the official negotiating round would be "public procurement law on the border". "It can not be ruled out that there have been such discussions with others," says Csaki.

The negated Stadler and Siemens / Bombardier. The BVG in turn agreed with the judge, who also canceled this complaint as unsuccessful. Finally, Alstom had suffered "no harm" by pointing to the traction. Instead, it increased the chance that the company gets the contract, said Cornelia Holldorf.

1.8 million euros court costs

Several times she has warned Alstom lawyers that they can withdraw their application. Last but not least, that would save 230,000 euros. The entire process costs would otherwise be 1.8 million euros, calculated legal experts.

But Alexander Czaki demanded file inspection – and a verdict. "Sometimes a lawsuit needs a court decision," the Alstom lawyer warned. And so the court had to adjourn, even if it had long been clear how it would decide in the last instance – in favor of the BVG. It is therefore foreseeable that Stadler will receive the order later in 2020. The first pre-series trains are now expected to roll through Berlin at the earliest in 2022.



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