Germany – Internet service providers ISP – Stadt Eschenbach i.d.Opf. - Gigabit-RL 2.0 (2025) - Auswahlverfahren einer Dienstleistungskonzession im Wirtschaftlichkeitslückenmodell für die Planung, Errichtung und den Betrieb eines Gigabit-Netzes

Negotiated procedure with participation competition pursuant to § 12 KonzVgV in conjunction with § 14 para. 2, para. 3 no. 2, no. 3 VgV, § 119 para. 5 GWB (two-stage negotiated procedure) for the determination of a network operator for the planning, construction and operation of a Gigabit network in the economically viable gap model in the designated expansion areas according to the directive "Promotion to support the Gigabit expansion of telecommunications networks in the Federal Republic of Germany" of 31.03.2023 in the version of the 2nd amendment of 13.01.2025 (hereinafter "Gigabit-RL 2.0"). The essential basis of the procedure are the "Framework regulation of the Federal Republic of Germany for the support of the nationwide expansion of Gigabit networks" of 01.08.2024 (hereinafter "Gigabit-RR 2.0"), the directive "Promotion to support the Gigabit expansion of telecommunications networks in the Federal Republic of Germany" of 31.03.2023 in the version of the 2nd amendment of 13.01.2025 (hereinafter Gigabit-RL 2.0) as well as the communication of the European Union "Guidelines for state aid for the promotion of broadband networks" of 31.01.2023 (2023/C 36/01). The advertised addresses of the development area are, according to the result of the market survey, subsidisable undersupplied addresses within the meaning of the Gigabit-RL 2.0. For this reason, a Gigabit network is to be established there as a technology-neutral network designation (network with a broadband supply of at least 1 Gbit/s symmetrically under peak load conditions for all end users of the advertised addresses) in the undersupplied areas on the basis of this selection procedure, whereby the up- and download rates must at least double. Reference is made additionally to the specifications of the "B-Performance Description" incl. its annexes. The contracting authority classifies the advertised "Contract for the transfer of grants within the framework of the Gigabit expansion in the city of Eschenbach i.d.OPf. for the purpose of planning, construction and operation of a gigabit-capable broadband network in the economically viable gap model according to the directive "Promotion to support the Gigabit expansion of telecommunications networks in the Federal Republic of Germany - Federal Gigabit Directive 2.0 (Gigabit-RL 2.0)" as a service concession within the meaning of § 105 para. 1 no. 2 GWB. The contracting authority thereby transfers the realisation of the supply of the population with Gigabit connections, which is incumbent on it as a task of public welfare, to the concessionaire, who obtains the right of use of the Gigabit network and receives the remuneration for his activity primarily through the fees of the end customers, while the contracting authority only provides a subsidy to cover the possible indicated economic gap, which does not preclude a service concession according to § 105 para. 1 no. 2 GWB. The focus of the concessionaire's activity lies in the service of operating the broadband network for a period of at least seven years. The contracting authority further classifies the Gigabit network to be planned, constructed and operated as a "public communications network" within the meaning of the sectoral exemption according to § 149 no. 8 GWB, so that the 4th part of the GWB does not apply. To the extent that the documents of the selection procedure refer to standards of the 4th part of the GWB, this does not give rise to a claim for their applicability.