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Can bidders in the upcoming German tender process, for offshore wind power, enforce the award?

Words: Linda Blunk in cooperation with Blanke Meier Evers

Project developers of offshore wind power have growing concerns, even anxieties, which mirror their apprehension about a basic injustice inherent in the future tendering process stipulated by the new German Offshore Wind Energy Act (WindSeeG).

This apprehension has already led to numerous legal inquiries which focus on the following question: Is the tendering procedure pursuant to the WindSeeG unconstitutional, more specifically, can a project developer, who has lost a bid, correct the tender procedure or can he even enforce the award?

I. Tendering Process during the Transition Period

There are numerous examples in German jurisdiction, where tender results have been set aside by a court. For example, Landgericht Köln (Regional Court, Cologne) recently ruled in favour of a utility company, providing energy, water and waste disposal, that had alleged that the tender process had been ‘opaque and discriminatory’ because at an early stage a certain bidder (“ENWOR”) had been favoured, thus robbing other bidders of their chance of success and stage managing the process.

In the realm of offshore wind energy there are also numerous bidders with scant chance of success who are in competition with handful of bidders with good prospects. This is the fault of the tendering process of the transitional regime evolved by WindSeeG.

In Germany the central ‘Danish’ model will be introduced in the future. According to this model, bidders compete for the building of a specific wind park, prescribed by the Federal Grid Agency (Bundesnetzagentur) at a site pre-examined by the Federal Maritime and Hydrographic Agency (Bundesamt für Seeschifffahrt und Hydrographie). However, this central model will apply only after a transition period, due to the long lead times needed for planning and approval procedure.

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