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16.03.2022

The new EVB-IT Cloud are available since 02.03.2022

Introduction

On 02.03.2022, the Federal Ministry of the Interior and Home Affairs (BMI) published the contractual basis for the award of cloud services by the public administration. The publication was based on  the resolution of the IT Planning Council of 11.02.2022 (resolution 2022/01). The IT Planning Council recognized the EVB-IT Cloud and recommended its members to make use of them.

Thus, for the first time, standardised purchasing conditions for cloud services are available. Among other things, quality of service, data and IT security as well as control rights in the use of cloud services are taken into account. A major gap has been filled.

The EVB-IT Cloud extend the ten existing EVB-IT for IT procurements of public contracting authorities. The public sector has to apply public procurement law. This has an impact on purchasing and contract design. Above certain thresholds, EU public procurement law is relevant (Part 4 of the Act against Restraints of Competition (GWB) and the Ordinance on the Award of Public Contracts - VgV). Below the threshold values, similar regulations apply via budgetary law. In many cases, the types of contracts provided for in the BGB (German Civil Code) do not provide a suitable basis for the procurement of IT services and supplies. In order to meet the need for contracts in standard cases in IT procurement, the Supplementary Terms of Contract (EVB-IT) have been developed. On the one hand, the EVB-IT contracts often cannot cover all particularities of the individual case. On the other hand, many text areas are not relevant in the individual case and should be deleted in order to maintain an overview. In practice, public contracting authorities and the contractor are therefore well advised to check carefully whether and, if so, which EVB-IT are suitable and appropriate for the specific service. Even if the parties decide against using the EVB-IT contracts, they can still be used as a "checklist" for an individual contract. EVB-IT are generally well suited for negotiated procedures under public procurement law.

​​​​​​​​​​​​​​Scope of application

The EVB-IT Cloud have been developed for the procurement of cloud services. They can be used in the procurement of different solutions such as Infrastructure as a Service (IaaS), Platform as a Service (PaaS), Software as a Service (SaaS) and Managed Cloud Services (MCS). With regard to IT security issues, clause 1.2. of the EVB-IT Cloud GTC clarifies that the contractor shall provide the services in compliance with the Cloud Computing Compliance Criteria Catalogue (Criteria Catalogue C5) applicable at the time of conclusion of the contract.

The EVB-IT Cloud initially contain a sample contract (EVB-IT Cloud Contract). The contract usually includes the EVB-IT Cloud GTC. The EVB-IT Cloud GTC contain the basic pregulations for the provision of services and form the core of the EVB-IT Cloud. If required, the other EVB-IT Cloud documents such as the "Catalogue of Criteria for Cloud Services" and the "Annex of Contractor-side GTC" may also be included, cf. section 1.2.1 of the sample contract.

The "Catalogue of Criteria for Cloud Services" offers the possibility to make differentiated specifications for the concrete cloud services and to deviate from or go beyond the regulations in the EVB-IT Cloud GTC. In addition, the catalogue of criteria offers the possibility of referring to specific service and regulation areas, to further attachments on the part of the principal as well as specifically to individual regulations in general terms and conditions on the part of the contractor.

The other EVB-IT contracts do not provide for annexes such as the "Annex contractor-side GTC". The "Annex Contractor-Side GTC" - consisting of Annex I and II – intends to enable the opening of the EVB-IT Cloud for Contractor-Side GTC. Due to the high degree of standardisation of cloud services, it may be necessary to partially include these GTC of cloud providers depending on the type of service. Annex I allows for a subordinate inclusion of the entirety of the contractor's GTC. Annex I can be used as an alternative to Section 1.2.4 of the EVB-IT Cloud Contract, which also provides for the possibility of including contractor-side GTC. Annex II also provides for priority inclusion of contractor-side GTCs in relation to individual clauses. The EVB-IT Cloud Contract itself does not provide for such a possibility. Thus, priority inclusion can only take place on the basis of the "Annex to the Contractor's General Terms and Conditions".

The notes on use support the application and completion of the EVB-IT Cloud.

​​​​​​​​​​​​​​Evaluation of the EVB-IT Cloud after 18 months

The EVB-IT Cloud will be reviewed again 18 months after publication and adapted if necessary. Experiences and suggestions can be submitted via DGI5@bmi.bund.de.

​​​​​​​Summary

Contracting authorities should check the EVB-IT before tendering to see whether the EVB-IT are suitable as a basis for IT tenders. If the EVB-IT appear to be suitable, the client should delete parts of the text that are not required in order to reduce the amount of text. Alternatively, it may make sense to draw up an individual, tailor-made contract for the tender. A little preparation pays off, especially in the event of a dispute. It is also important to include adequate adjustment clauses for changes in services and costs.

Bidders/contractors should prepare themselves for the EVB-IT and carefully check if appropriate  specificationshave been made. Uncertainties must be addressed early via bidders requests. Thereby, the awardingauthority should already be given concrete suggestions for answers and a "golden bridge" should be built. Nonsensical or unlawful specifications must be reprimanded (in a friendly manner), otherwise they can no longer be invoked later.

Authors

Karin Deichmann

Dr. Karin Deichmann

Associate

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René M. Kieselmann

René M. Kieselmann

Partner

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Mathias Pajunk

Dr. Mathias Pajunk

Counsel

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