Dispute over iPad procurement: Samsung takes city of Datteln to the OLG Düsseldorf

The background to the conflict is a pilot project that has been running since 2017: at that time, Datteln launched 200 iPads at four schools and later expanded the project to nine schools. During the COVID-19 pandemic, around 2,700 iPads were purchased via the Digital Pact. A planned re-procurement of further devices has now been halted due to the ongoing proceedings. Until a final clarification, there is a purchasing freeze for new devices.

Samsung argues that the targeted procurement of Apple devices effectively excludes other manufacturers with alternative operating systems and violates the requirement of product-neutral procurement under the Act against Restraints of Competition (GWB) and the Public Procurement Regulation (VgV). Section 31 of the VgV fundamentally requires product-neutral service descriptions; a manufacturer-related specification is only permissible if the subject of the contract justifies it.

Arguments from both sides

The city of Datteln justifies its approach on the basis of its existing IT infrastructure. Teachers and technical systems are aligned with Apple. As technical reasons, the administration cites the existing Mobile Device Management with automated enrollment via Apple Automated Device Enrollment (ADE), central app procurement via volume licenses, the shared device mode, and the teacher console. In addition, the administration fears additional administrative effort should a parallel operation of different operating systems become necessary in schools in the future.

According to the administration's assessment, switching the operating system would cause significant problems in everyday school life. Due to the halted re-procurement project, numerous students currently have to manage without the planned digital aids; according to WDR, more than 600 students are waiting for a new device.

Mayor André Dora described the lawsuit as a "großen Schock" according to WDR. Lawyer Arndt Kempgens told the broadcaster: „Ich glaube, das deutsche Recht spricht dafür, dass Städte weiterhin Apple-Tablets nutzen dürfen, es ist ja keine neue Technik, die angeschafft wird. Aber es sind neue öffentliche Aufträge, die am Ende vielleicht ausgeschrieben werden müssten. Das wäre eine Grundsatzfrage, die der EuGH treffen müsste." Kempgens also warned that the city could theoretically buy iPads, but would have to unwind the purchase in the event of a loss – a risk the municipality cannot take.

Comparable proceedings in other municipalities

The dispute over the type of contract award touches on central questions of procurement law, which raises its relevance beyond the individual case. WDR reports, citing comparative figures, that Duisburg has more than 54,000 iPads in use, Essen around 74,000, and Dortmund as many as 86,000 devices. This means the decision could be groundbreaking for numerous municipalities that have invested heavily in iPads in recent years.

There are parallels in several federal states: In Verl (NRW), Brandenburg, and Hanover, the targeted procurement of iPads was also the subject of court proceedings. The Higher Regional Court of Brandenburg ruled on 8 July 2021 (Ref. 19 Verg 2/21) that a product-specific iPad procurement is permissible under certain technical and organizational conditions. At that time, the court accepted the reasoning based on the existing system landscape, compatibility and security aspects, as well as the lower administrative and training effort.

Possible referral to the European Court of Justice

According to WDR information, a targeted iPad procurement was also judicially confirmed in Hanover. Samsung has filed similar lawsuits several times in the past and failed. In its lawsuit, however, Samsung points to the importance of open standards in the public sector and demands a brand-neutral tender to enable access for other providers.

Due to the fundamental significance of the procurement law questions, experts consider a referral to the European Court of Justice possible. The OLG could also refer the case to the ECJ in order to achieve a Europe-wide uniform line.

If the OLG Düsseldorf rejects Samsung's objection, the way would be clear for re-procurement in Datteln. If the case is referred to the ECJ, however, the proceedings could be prolonged by years – with corresponding consequences for the affected students.

The legal dispute was reported on, among others, by the website News4teachers as well as by WDR, which drew on information from the city and from Kempgens as a legal observer.