Top EU Court Backs Closed Bid for Ambulance Contract

(CN) - The city of Solingen, Germany, did not need to publish notice before soliciting bids on a contract for ambulance-transportation services, the European Court of Justice ruled Thursday.

Emergency-service provider Falck Rettungsdienste brought the lawsuit here in 2016 after the city of Solingen invited four nonprofits to bid on a two-part, five-year contract. In addition to ambulance transport, the contract included emergency patient care.

Solingen ultimately chose two of the pubic-aid associations for the contract, but Falk claimed that the city’s failure to publish notice of the contract breached EU public-procurement rules.

Though the public-procurement tribunal in Rhineland ruled against Falk, the Higher Regional Court in Dusseldorf punted the ensuing appeal to Luxembourg.

On Thursday, the Third Chamber of the European Court of Justice ruled “that nonprofit organizations ... are not required also to satisfy the conditions laid down in Article 77(2) of [the public-service-contract] directive.”

Dissecting the language of the directive, the opinion quotes it as saying “this directive should not apply to certain emergency services where they are performed by non-profit organizations or associations, since the particular nature of those organizations would be difficult to preserve if the service providers had to be chosen in accordance with the procedures set out in this directive.”

“In that regard,” the ruling continues, “it must be emphasized that the exclusion of the application of that directive is not restricted only to emergency services that are provided when collective danger arises. Furthermore, it must be observed, as the order for reference states, that the primary activity carried out by the public aid associations in question in the main proceedings relate to emergency services which, as a general rule, deal with individual and daily interventions. It is precisely as a result of the experience thus acquired by performing those day-to-day emergency services that those nonprofit organizations or associations are in the position, according to the referring court, of being operational when they are required to provide ‘civil protection’ and ‘civil defense’ services.”

As for patient care in emergency situations, the ruling says “there is no doubt” that such work is covered by the section of public-procurement rules devoted to rescue services.

Ambulance-transport service, by contrast, “is not carried out by means of a rescue vehicle, with all the specialized medical equipment that that implies, but by means of an ambulance which may only be a mere transport vehicle.”

Thus “the exclusion from the application of the public procurement rules ... covers the care of patients in an emergency situation in a rescue vehicle by an emergency worker/paramedic ... and transport by qualified ambulance ... provided that ... it is in fact undertaken by personnel properly trained in first aid and, second, it is provided to a patient whose state of health is at risk of deterioration during that transport.”

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