Referent: RA Norman Müller (Berlin)
Moderator: RA Dr. Malte Grützmacher (Hamburg)
After a brief overview of the creation, further development and purpose of the EVB-IT, the speaker presented the regulations on source code and deposit in the EVB-IT system contract. He pointed out that the standard does not provide for deposit, but that this must be expressly agreed by the parties. However, the EVB-IT-System already provides for special provisions in this regard in clause 17.
According to clause 17.1 EVB-IT-System, customised software is handed over instead of deposited, unless otherwise agreed. For standard software, escrow can be agreed in accordance with clause 17.2 EVB-IT-System. In this context, Mr Müller outlined the advantages and disadvantages of handing over the source code to the client as opposed to depositing it, thus drawing a link to the question of what considerations the public sector had made with regard to the provisions on depositing prior to the unilateral publication of the EVB-IT-System.
Mr Müller, who had himself taken part in the negotiations between the public sector and industry, pointed out that there were particular problems under public procurement law in connection with the deposit of the source code. The awarding authority must actually specify the rights to the software to be procured. As a rule, however, there are deviating fixed specifications from the major software manufacturers, particularly from the USA. If the contractor is not the manufacturer itself, it therefore has little influence on the legal structure. Even if the contractor is the manufacturer itself, the narrow corporate specifications often do not fit into our legal system.
According to the speaker, the consequence of the inflexible legal requirements of the manufacturers would be that the bidders would often have to be excluded in accordance with Section 25, No. 1, Para. 1 d VOL/A. Furthermore, in practice many large manufacturers did not deposit at all or only under certain conditions of their own. If strict deposit requirements had been included in the EVB-IT system, this would have resulted in few or no compliant tenders being submitted.
Summarising, the speaker emphasised that the EVB-IT system contract therefore did not contain strict specifications and only regulated the most important points. In particular, a draft escrow agreement was not included as an annex. Nevertheless, the handling remains problematic: If the awarding authority offers a draft of the escrow agreement, it is very difficult to compare the bids. Furthermore, the bidders’ drafts are often inadequate and not insolvency-proof.
Following the presentation, various points were discussed, in particular the consequences of a breach of public procurement law. In addition, the question of the usability of the ‘BVB creation’ was raised. Comments were made on the view of the Court of Audit with regard to the granting of rights. It was also recognised as a problem that the comprehensive granting of rights can lead to purchasing being too expensive, while on the other hand simple rights may not be sufficient.