Court examines award procedure for Berlin S-Bahn

The largest tender in Berlin's S-Bahn history could violate public procurement law in parts. This was made clear by the Berlin Court of Appeal on Friday at the start of its hearing on the tender by the states of Berlin and Brandenburg. The court is to examine the tender procedure and assess whether the procedure is correct under public procurement law. After several hours of hearings, it was considered unlikely that a decision would be reached on the same day.

The French rail technology group Alstom has criticized the tender modalities and has therefore gone to court. In October 2022, the public procurement chamber of the state of Berlin came to the conclusion that the procedure was not objectionable. Alstom lodged an appeal against this decision with the Court of Appeal. The ball is now in the court of appeal's court.

The Court of Appeal is hearing a total of 25 complaints from the Group. Some of these are well-founded according to previous assessments, others are not, explained presiding judge Cornelia Holldorf. The judges are focusing on five areas - and in four cases the complaints are justified according to the preliminary assessment of the senate, explained Holldorf. For example, Alstom criticized the criteria according to which incoming bids are to be evaluated. The court also sees a residual risk that the most cost-effective bid will not necessarily be awarded the contract.

At the same time, Holldorf emphasized that the federal states had made constant efforts to ensure that the procedure complied with public procurement law. The court's aim was to support Berlin and Brandenburg in this process. After all, the "reputation of the federal states is at stake".

The award procedure involves large parts of the Berlin S-Bahn network. Affected are the north-south routes and the lines that run east-west over the Stadtbahn viaduct. The Ringbahn is not included. An operator is being sought for the period from 2029 to the 40s. Bidders can apply for the operation or for the procurement and maintenance of the vehicles. They can also apply for both options. More than 1000 new S-Bahn carriages are at stake. There have already been several delays in the process. The deadline for bids is currently the end of March. Depending on the outcome of the legal proceedings, the date could be delayed further.

The awarding of tenders was a reaction to the crisis that the S-Bahn got into from 2009 onwards following technical problems, maintenance deficiencies and mismanagement. Deutsche Bahn has been operating the Berlin S-Bahn network single-handedly for decades.

The tendering modalities were the subject of lengthy discussions. The process is considered very complex. Critics fear a break-up of the S-Bahn. Companies see competitive advantages for Deutsche Bahn.