Grounds of Abuse in Procurement Law 2026

Definition: Grounds of abuse in procurement law denote conduct by public contracting authorities or bidders that circumvents or undermines the protective provisions of procurement law – in particular inadmissible contract splitting, abusive direct awards, collusive conduct, and other manipulations of competition.

Last updated: January 2026 · Legal basis: §§ 97 et seq. GWB; Art. 5(3) Directive 2014/24/EU; §§ 1, 19 GWB (cartel law)

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Overview of grounds of abuse

Procurement law distinguishes between grounds of abuse on the contracting authority's side (e.g. contract splitting, inadmissible direct awards, manipulation of the specifications) and on the bidder's side (bidder agreements, mixed pricing, false suitability evidence).

Abuse on the contracting authority's side

Inadmissible contract splitting

Splitting a single contract into several smaller parts in order to fall below the EU thresholds and circumvent the more demanding EU procurement law is expressly prohibited (Art. 5(3) Directive 2014/24/EU; § 3(2) VgV). The relevant total contract value is determined by an economic overall assessment of the procurement project, not by artificial splitting.

Abusive direct award (de facto award)

The awarding of a contract without the legally prescribed tender procedure (so-called "de facto award") is the most serious ground of abuse in procurement law and can lead to the contract being declared null and void. § 135 GWB stipulates absolute invalidity of contracts concluded in breach of the tender obligation, where the contracting authority has not given prior notice in TED of its intention to conclude the contract without prior publication and the review period has lapsed.

Manipulation of the specifications

Drafting specifications so narrowly tailored to a particular product or bidder that only that party can meet the requirements constitutes an abuse of the right to determine performance. Art. 42(2) Directive 2014/24/EU prohibits technical specifications that favour or exclude certain companies.

Inadmissible negotiations

The prohibition of negotiations (in the open procedure) is abused when the contracting authority enters into price negotiations with individual bidders after the opening of bids, thereby disadvantaging other bidders.

Abuse on the bidder's side

Bidder agreements (§ 298 StGB; Art. 101 TFEU)

Agreements between bidders concerning the level of bid prices, the allocation of lots, or the waiver of bids are criminal offences under § 298 StGB and infringe cartel law under Art. 101 TFEU. They also constitute an optional ground for exclusion under § 124(1) No. 4 GWB.

False suitability evidence

Bidders who submit false or forged evidence of their suitability commit a mandatory ground for exclusion (§ 123(3) GWB) and expose themselves to criminal risks (fraud, forgery of documents).

Legal remedies and sanctions

Grounds of abuse can be invoked in the review procedure; the procurement chamber can set aside the award decision and order the contracting authority to make a new decision. In cases of serious breaches (de facto award), the contract may be declared ineffective. Bidder agreements are sanctioned by the cartel authorities (Federal Cartel Office, European Commission) with substantial fines.

FAQ

What is a de facto award? A de facto award is the awarding of a contract without the prescribed tender procedure; it is the most serious ground of abuse and can lead to nullity of the contract.

When does inadmissible contract splitting arise? When an economically single contract is artificially split into several smaller parts in order to fall below the thresholds; the singularity of the contract is to be assessed by economic, temporal and substantive considerations.

How are bidder agreements detected? Often by statistical anomalies (similar bid prices, identical calculation errors), through leniency programmes, or through tip-offs from co-bidders or whistleblowers.

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