Luca app: purchase by Mecklenburg-Western Pomerania was illegal

In the fight against Corona, Mecklenburg-Western Pomerania, among others, relied on support from the popular Luca app. Now the Rostock Higher Regional Court (OLG) had to decide whether the state in the north of the republic was entitled to buy it at all. The ruling is likely to make Minister President Manuela Schwesig (SPD) anything but cheerful. After all, the court sees the app purchase as illegal.

Violation of competition law

In reaching its verdict, the OLG considered provisions of public procurement law in particular to have been disregarded. Thus, the court made it clear in its ruling that the purchase from the Luca app was a violation relevant under competition law, which is first and foremost a disadvantage vis-à-vis the plaintiff and other competitors. The federal state should therefore have refrained from awarding the contract directly and also considered other providers of similar software applications. Now the purchase agreement between Mecklenburg-Western Pomerania and the representatives of the Luca app is considered invalid. According to the court, a continuation was not permitted. On the plaintiff’s side was the Lower Saxony software company “Vidavelopment”.

Competition must be guaranteed even in times of pandemic

Of course, in reaching its verdict, the court also took into account the urgency that now prevails in extraordinary situations such as a pandemic. But the judge nevertheless made it clear that competition must play a role even in such extreme situations and must not be circumvented. Accordingly, the federal state would have had to obtain a corresponding offer not only from the Luca app, but also from other providers. For example, from the plaintiff “Vidavelopment”. According to the court, the plaintiff had already approached the Prime Minister Manuela Schwesig in the fall of last year with a corresponding offer for the “Vida app”. Only four days later, the purchase of the Luca app was made public.

The Vida app certainly meets the requirements, as the OLG also stated and reaffirmed in its ruling. It was competitive in any case due to the fulfillment of the applicable minimum requirements for an app for contact tracking. The bottom line is that it should also have been at least discussed as an alternative to the Luca app. Since it has now been legally clarified that the action on the part of the State Chancellery of Mecklenburg-Western Pomerania was not legal, Robert Haile, CEO of Vidavelopment, will be pleased. This said in the follow-up that now it is to be clarified, which legal consequences that brings for the north German Land with itself. However, they will certainly be happy about a small financial injection.

Questionable award policy

It is really surprising why Mecklenburg-Vorpommern chose the Luca app of all things. After all, the app was criticized from the beginning for many reasons. On the one hand, there were sensitive security gaps, which the Chaos Computer Club (CCC) pointed out several times. The association of resourceful IT professionals even called for the app to be stopped because the users’ data security was not guaranteed. In defense of the Luca app, however, it must be said that the CCC also considered the alternatives to be no less dangerous for data protection, and certainly still does. Despite the criticism, the app was able to generate a total of 20 million euros from its buyers. I wonder if that was due to prominent figureheads like Smudo (Die Fantastischen Vier). Who knows.

What is certain is that the Bund Deutscher Steuerzahler (Association of German Taxpayers) in Saxony-Anhalt has already drawn attention to the purchase in question. After all, it is ultimately taxpayers’ money that flowed into an app that is apparently not fully developed. Thus it says on the part of the association:

“Particularly serious is also the fact that with the Luca app, the annual licenses were paid in advance. Since user-dependent price models were not agreed upon, as is usually the case in the industry, the financial advantage for the Luca app provider could be higher the less the app is used – because it has to provide less service.”