The procurement of a new assault rifle for the Bundeswehr has taken a surprising turn, as the German Defence ministry now seems to prefer Heckler & Koch’s offer over Haenel’s. Now Germany is likely to acquire the HK416 assault rifle.
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On 10 June, the Federal Procurement Chamber at the Federal Cartel Office rejected an application for review by Haenel. The original background was a patent dispute, because of which the Federal Office of Bundeswehr Equipment, Information Technology and In-Service Support (BAAINBw) and the Ministry of Defence had excluded the Suhl-based company from supplying the successor to the G36, after Haenel's MK556 assault rifle had previously been selected as the Bundeswehr's new standard weapon. Haenel had taken legal action against this exclusion.
The Procurement Chamber has now ruled that the exclusion was justified. The decisive reason for the decision, however, is not to be found in the communication from the Ministry of Defence on Thursday, but in a statement from the Cartel Office:
“Within the framework of the award procedure, Haenel was originally intended to be awarded the contract for the delivery of new assault rifles. After the BAAINBw concluded that the weapon offered by Haenel infringed patents of other companies, the company was excluded from the award procedure. In the end, however, the Public Procurement Tribunal did not have to decide on this exclusion due to the alleged patent infringement, as Haenel was no longer eligible for the conclusion of a contract for other reasons: A necessary recalculation of Haenel's bid price had shown that the company's bid was economically inferior to that of Heckler & Koch. In its decision, the Public Procurement Tribunal also dealt with grounds for exclusion asserted against Heckler & Koch by Haenel. The BAAINBw's discretionary decision not to exclude Heckler & Koch from the award was not objectionable.”
This comes as surprise, as the original Haenel bid had come under consideration over the Bundeswehr’s traditional supplier, Heckler & Koch, because of its cheaper price. “The winning bid fulfilled all evaluation criteria and over its lifetime has the highest economic efficiency of all bids.” the then Parliamentary State Secretary Peter Tauber had informed the Bundestag.
The Bundeswehr had invited tenders for the replacement of Heckler & Koch’s G36 in 2017. This came after reports of the rifles reported inaccuracy when the weapon was fired hot or in the event of severe fluctuations in ambient temperature. Initially the German Ministry of Defence had picked Haenel’s MK556 over Heckler & Koch’s HK416.
The HK416 assault rifle fires standard 5.56x45mm NATO, as did the G36. It uses a proprietary short-stroke, gas piston system from Heckler & Koch's earlier G36 family of rifles. It is in service with various special forces, as well as being the service rifle of both Norway and France. Haenel’s MK556 is a fully automatic version of an earlier Haenel design, the CR 223, and uses the same round as the HK416. It is only in limited service with some German and Polish police forces.
The replacement procedure was stopped in October 2020 after Heckler & Koch had complained, that Haenel's weapon infringed one of its patents; a lawsuit by Heckler & Koch was also pending at the Düsseldorf Higher Regional Court. The Ministry of Defence then commissioned a patent attorney to evaluate the facts of the case. The lawyer concluded that Haenel should be excluded from the proceedings and an award of the contract to Heckler & Koch was announced. Haenel, in turn, defended itself with legal means, complained to the BAAINBw about the exclusion and then also went to the next instance before the Procurement Chamber.
After Thursdays ruling, Haenel has published a statement on their website, containing the following: “The decision of the Procurement Chamber is extremely disappointing and factually incomprehensible. We are still convinced that we submitted the best and most economical offer. We do not understand why C.G. Haenel was excluded on the grounds of patent infringement and then finally withdrawn from the contract on the grounds of lack of economic viability. We will thoroughly examine the reasons and expressly reserve the right to take legal action.”
Haenel can file an appeal against the decision of the Procurement Chamber within a period of two weeks, which would be decided on by the Düsseldorf Higher Regional Court if necessary.
