Germany – Internet service providers ISP – TITTLNG-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 in accordance with § 12 KonzVgV in conjunction with § 14 para. 2, para. 3 no. 2, no. 3 VgV, § 119 para. 5 GWB (two-stage negotiated procedure) to determine a network operator for the planning, construction, and operation of a Gigabit network in the viability gap model in the advertised expansion areas in accordance with the directive "Promotion to support the expansion of Gigabit 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 expansion of Gigabit 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) and 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 expansion area are, according to the result of the market survey, subsidizable underserved addresses in the sense 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 underserved areas, with the up- and download rates having to at least double. Reference is made additionally to the specifications of the "B-Performance Specification" incl. its annexes. The granting authority classifies the advertised "Contract for the transfer of grants in the context of the Gigabit expansion in the municipality of Tittling 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 expansion of Gigabit 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 granting authority thereby transfers the task of providing the population with Gigabit connections, which is incumbent upon it as a matter of public welfare, to the concessionaire, who obtains the right to use the Gigabit network and receives the remuneration for his activity primarily through the fees of the end customers, while the granting authority provides only 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 lies on the service of operating the broadband network for a period of at least seven years. The granting authority further classifies the Gigabit network to be planned, constructed, and operated as a "public communications network" within the meaning of the sectoral exception 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 to their applicability.