Grounds for Exclusion in Public Procurement Law 2026

Definition: Grounds for exclusion are the totality of statutorily defined circumstances upon the existence of which contracting authorities are obliged or entitled to exclude candidates or bidders from the procurement procedure, in order to safeguard the integrity, fairness and functioning of public procurement.

Last updated: January 2026 · Legal basis: Directive 2014/24/EU Art. 57, BVergG 2018 §§ 78–82, GWB §§ 123–125, VgV § 42

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Overview: Grounds for Exclusion in Procurement Law

Grounds for exclusion form the procurement-law mechanism that prevents public contracts from being awarded to undertakings considered unsuitable contract partners of the public sector due to criminal offences, serious breaches of duty or economic distress. EU law distinguishes between mandatory and discretionary grounds for exclusion; in addition, Member States may provide for further grounds for exclusion under national law.

Mandatory Grounds for Exclusion (Art. 57 para. 1 Directive 2014/24/EU)

In the case of mandatory grounds for exclusion, the contracting authority has no discretion – the affected undertaking must always be excluded.

Offence	Legal Basis
Bribery and corruption	Art. 57 para. 1 lit. b
Fraud against the EU's financial interests	Art. 57 para. 1 lit. a
Terrorist offences	Art. 57 para. 1 lit. d
Money laundering and terrorist financing	Art. 57 para. 1 lit. c
Child labour and human trafficking	Art. 57 para. 1 lit. f
Membership of a criminal organisation	Art. 57 para. 1 lit. e

In each case, a final criminal conviction of natural persons holding senior positions in the undertaking or with powers of representation is required.

Discretionary Grounds for Exclusion (Art. 57 para. 4 Directive 2014/24/EU)

Discretionary grounds for exclusion give the contracting authority a margin of appreciation that must always be exercised in observance of the principle of proportionality.

Important discretionary grounds for exclusion:

• Insolvency and comparable proceedings (liquidation, insolvency, cessation of commercial activity)
• Grave professional misconduct: violations of professional standards, environmental, social or labour law established in court or administrative proceedings
• Conflict of interest: where a conflict of interest cannot be eliminated by less restrictive measures
• Distortion of competition through prior involvement: involvement in the preparation of the procurement procedure (bias)
• Poor prior performance: significant or persistent deficiencies in the performance of earlier contracts that led to early termination, damages or similar consequences
• False declarations: false or misleading statements in the procurement procedure

National Specifics

Austria (BVergG 2018)

In Austria, the grounds for exclusion are set out in §§ 78–82 BVergG 2018. Alongside the EU-law grounds, Austrian law provides for additional grounds for exclusion, for example in the event of serious violations of the Austrian Social Fraud Combating Act (SBBG) and where an undertaking is entered in the commercial register as unreliable. The ANKÖ database (Auftragnehmerkataster Österreich) records excluded undertakings.

Germany (GWB §§ 123–125)

The GWB divides the grounds for exclusion into mandatory (§ 123 GWB) and discretionary (§ 124 GWB). Particularity: German contracting authorities can also exclude undertakings that have committed violations of the Minimum Wage Act, the AEntG or the SchwarzArbG. Since 2021, the Competition Register (at the Federal Cartel Office) has recorded undertakings against which a ground for exclusion exists and enables contracting authorities to make a centralised query.

Self-Cleaning

Undertakings against which a ground for exclusion exists can avert their exclusion through self-cleaning measures. The measures must be suitable to remedy the misconduct and to prevent future violations. Typical self-cleaning measures:

1. Damages or compensation to injured parties
2. Active cooperation with investigating authorities
3. Implementation of an effective compliance management system
4. Dismissal or reassignment of the responsible employees

The contracting authority assesses the measures on a case-by-case basis. For mandatory grounds for exclusion, the possibility of self-cleaning is limited in time (generally a maximum of five years after conviction).

European Single Procurement Document (ESPD)

Bidders regularly demonstrate the absence of grounds for exclusion via the European Single Procurement Document (ESPD). The ESPD is a standardised European form that serves as preliminary evidence of suitability and of the absence of grounds for exclusion. Final evidence (criminal record extracts, certificates) only needs to be submitted by the preferred bidder.

FAQ

Can a contracting authority waive the exclusion? For mandatory grounds for exclusion: no. For discretionary grounds for exclusion: yes, if considerations of proportionality argue against exclusion or overriding public interests justify an exception.

For how long may an undertaking be excluded? Directive 2014/24/EU provides maximum periods of five years (mandatory grounds) and three years (discretionary grounds) from conviction. National law may shorten these periods.

What is the Competition Register in Germany? The Competition Register is a central register at the Federal Cartel Office in which entries on violations of corruption offences, antitrust law and other matters are made. Contracting authorities above a certain threshold are required to make queries.

Do grounds for exclusion also apply to subcontractors? Yes. In certain constellations, grounds for exclusion can also be applied to subcontractors, especially where the main contractor demonstrably relies on subcontractors against which a mandatory ground for exclusion exists.

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Last updated: January 2026 All information provided without guarantee. For legally binding advice, please consult a law firm specialising in procurement law.