Procurement practices within the day care system face scrutiny
In the city of Nürnberg, the topic of Full-Day Care and Procurement Law has gained significant attention. Unlike classical public procurement law, the regulation of full-day care services, particularly daycare centers (Kindertagesstätten), falls under social and youth welfare law.
The Social Code, Book VIII (SGB VIII), plays a crucial role in governing these services, emphasizing the involvement of free youth welfare providers, such as non-profit organizations, churches, and private associations, in their provision.
Key procurement and operational requirements include the constitutional right of free youth welfare providers to participate in providing daycare services, which means public youth welfare offices must involve them and often give them preference when awarding contracts or service agreements for full-day care.
The state or municipal authorities usually finance daycare centers through public law agreements or contracts for social services, allowing for a differentiated approach recognizing the sector’s social nature and the constitutional status of free providers.
According to German procurement practices and ruling bodies, public authorities are not always required to conduct open competitive tenders for daycare operation contracts, especially when awarding contracts to free youth welfare providers with recognized status. Contracts must adhere to principles of good administrative practice, non-discrimination, and proportionality, but strict EU procurement procedures often do not apply to these social service contracts unless thresholds or contestability criteria are met.
If procurement law applies (e.g., for larger contracts exceeding EU thresholds), the awarding process may require competitive procedures but with specific allowances for social services to protect the social welfare objectives and community-related benefits.
In practice, procurement rules ensure that free youth welfare providers maintain a crucial and supported role in operating daycare centers, reflecting Germany's welfare pluralism and commitment to subsidiarity in youth welfare.
Additional notes:
- The procurement thresholds and rules applied in defense or IT services sectors do not straightforwardly extend to full-day care social services.
- German case law and federal guidelines emphasize cooperation with free providers without unnecessary privatization or rigid tendering, unless the public interest or competitive fairness strongly demands it.
In summary, while there are procurement requirements for full-day daycare services in Germany, these are specialized and oriented towards ensuring the inclusion and operation of free youth welfare providers within a framework governed by social law and subsidiarity principles, rather than purely classical public procurement laws. Service providers are obliged to create a pluralistic offer structure that respects the independence of free youth welfare and, in particular, the wish and choice rights of the beneficiaries.
A recent ruling by the Higher Regional Court of Thuringia (9 April 2024, case number: Verg 2/20) has further emphasized this by stating that EU procurement law applies for the operation of a daycare center.
- To ensure a balanced approach in financing business operations, certain allocations from the public sector are earmarked for education-and-self-development initiatives, such as daycare centers, given the importance of these services in community development.
- In the context of Nürnberg's Full-Day Care and Procurement Law, it is important to note that while procurement laws do apply to daycare centers, they are specialized to prioritize the involvement of free youth welfare providers, adhering to the principles of social law, subsidiarity, and the beneficiaries' choice rights.
