Germany – Internet service providers ISP – TIEFENBACH-Gigabit-RL 2.0 (LSP 2024) - Auswahlverfahren einer Dienstleistungskonzession im Wirtschaftlichkeitslückenmodell für die Planung, Errichtung und den Betrieb eines Gigabit-Netzes

Selection procedure for a service concession in the viability gap model within the gap closure program for the planning, construction and operation of a Gigabit network according to the Gigabit Directive 2.0 (2024) in the municipality of Tiefenbach

Description: Negotiated procedure with a selection competition in accordance with § 12 KonzVgV in conjunction with § 14 para. 2, para. 3 No. 2, No. 3 VgV, § 119 para. 5 GWB (two-stage negotiation procedure) to determine a network operator for the planning, construction and operation of a Gigabit network in the viability gap model within the gap closure program in the advertised expansion areas according to the directive "Promotion to support the Gigabit expansion of telecommunications networks in the Federal Republic of Germany" dated 31.03.2023 in the version of the 1st amendment dated 30.04.2024 (hereinafter "Gigabit Directive 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" dated 01.08.2024 (hereinafter "Gigabit Framework Regulation 2.0"), the directive "Promotion to support the Gigabit expansion of telecommunications networks in the Federal Republic of Germany" dated 31.03.2023 in the version of the 1st amendment dated 30.04.2024 (hereinafter Gigabit Directive 2.0) and the communication of the European Union "Guidelines for state aid for the promotion of broadband networks" dated 31.01.2023 (2023/C 36/01). The advertised addresses of the development area are, according to the result of the market survey, eligible underserved addresses in the sense of the Gigabit Directive 2.0. For this reason, a Gigabit network as a technology-neutral network designation (network with a broadband supply of at least 1 Gbit/s symmetrically for all end users of the advertised addresses) is to be constructed there on the basis of this selection procedure in the underserved areas, 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 entity classifies the advertised "Contract for the transfer of grants within the framework of the Gigabit expansion in the municipality of Tiefenbach for the purpose of planning, construction and operation of a gigabit-capable broadband network in the viability 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 Directive 2.0)" as a service concession within the meaning of § 105 para. 1 no. 2 GWB. The contracting entity thereby transfers the task of ensuring the supply of the population with Gigabit connections, which is incumbent on it as a matter 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 entity merely provides a subsidy to cover the possible indicated viability gap, which does not conflict with a service concession according to § 105 para. 1 no. 2 GWB. The focus of the concessionaire's activity is on the service of operating the broadband network over a period of at least seven years. The contracting entity 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 constitute a claim to their applicability.