Procurement laws under scrutiny due to day care operations

In the realm of full-day care services for primary school children in Germany, a unique approach to procurement has been established. This approach requires a case-by-case examination of provider structures and the promotion of a pluralistic offer system, balancing public procurement law requirements with social service goals.

The legal framework necessitates an individual assessment of each full-day care service provider's organizational structure to determine whether and how procurement rules apply. Factors such as the operator (municipality, private provider, association), the type of contract or funding, and public or private elements involved can trigger different procurement rules.

To promote diversity and choice in full-day care services, the procurement law expects a pluralistic or varied offering. This means that contracting authorities (usually municipalities or public bodies) should aim to maintain multiple providers rather than granting exclusive contracts, which supports competition and prevents monopolies in the care market.

Public contracts for full-day care services are generally subject to the German and EU public procurement regulations if thresholds are met. However, due to the social and educational nature of these services, as well as subcontracting or cooperation between public and private entities, flexible application and sometimes exemptions exist.

The integration of social and educational goals is a key aspect of procurement law for these services. Legal interpretations often balance procurement principles with ensuring broad access and quality in care services. Although generally public procurement law encourages division into lots for smaller contracts, recent legal developments show a trend toward flexibility in division requirements.

Full-day care service procurement may allow flexible scope and award structures adapted to local needs. It's important to note that these principles come from the interpretation and application of general public procurement law combined with social and educational law, rather than a single dedicated statute.

In summary, procurement for full-day care in Germany requires a legal case-by-case examination of provider structures and the promotion of a pluralistic offer system to comply with procurement law and social objectives. This approach ensures that service providers create a pluralistic offer structure that respects the independence of free youth welfare and the wish and choice rights of the beneficiaries.

The article was written by Holger Schröder.

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