The German government established the broadband and gigabit funding programme to promote the expansion of digital infrastructure in areas where there is a lack of private-sector investment and a market failure has been identified. The project management contract for the government’s broadband funding programme had been awarded in two lots (aconium GmbH and PwC GmbH WPG) and is about to expire. Under the new contract awarded in the tendering procedure, on which BBH advised, aconium GmbH will be solely responsible for the project management across Germany, starting 01/01/2026. The funding volume is estimated to amount to up to €5 billion per year. Any previous and future projects awarded funding are to be handed over to the new agency by the end of the year.
The BBH group provided comprehensive advice to the BMDS throughout the planning and execution of the tendering procedure for a new project management agency. The highly complex EU-wide tendering procedure was carried out in several stages and had an estimated contract volume of approx. €430 million. Alongside its assistance in the tendering procedure, the BBH group also advised the BMDS on the participation in notification and review processes of the European Commission under the EU Foreign Subsidies Regulation. In addition, the group provided advice on IT, IP, telecommunications and contract law matters, including the contract with the project management agency and the associated extensive agreement on supplementary terms and conditions for the procurement of IT services (EVB-IT). The BBH group also advised on data protection and software licensing law issues.
Moreover, the BBH group successfully defended the contested tendering decision in favour of aconium GmbH in review proceedings. One rejected bidder challenged the decision and filed for review before the 1st federal public procurement tribunal. The legal dispute raised novel and complex legal issues regarding the evaluation of bids. The public procurement tribunal confirmed the award decision and dismissed the bidder’s motion for review.
BBH partner, lawyer and specialist lawyer for public procurement law Malte Müller-Wrede was the lead counsel in the project: “Broadband expansion is essential for Germany’s digitalisation. The purpose of having a single dedicated project agency assume responsibility for the organisation and management of the funding programme is to make the system more efficient. We are grateful for the trust placed in us and look forward to a smooth implementation of the programme in municipalities, municipal companies and private network operators.” “Since the changeover to the new project management agency is associated with an extensive data migration and complex issues under IT, copyright and licensing law as well as telecommunications law, we were happy to provide our expertise in this area”, add BBH partners and colleagues Dr. Maximilian Festl-Wietek and Julien Wilmes-Horváth, who are specialist lawyers for IT law. Both lawyers have long-standing and extensive experience in this context.
With more than 700 employees, 7,000 clients and 7 offices, the BBH group is a leading provider of advisory services to energy and infrastructure companies and their customers. Energy and supply companies, particularly public utilities, municipalities and local authorities, industrial companies and international groups are among its core clients. The BBH group assists these and many other companies and organisations with legal, business and strategic advice.
Contact:
Prof. Dr. Ines Zenke
Rechtsanwältin/Lawyer, Partner
Phone +49 (0)30 611 28 40-179
ines.zenke@bbh-online.de
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