Incorrect Declarations in Procurement Law 2026 – False Statements

Definition: Incorrect declarations in procurement law are untrue or inaccurate statements made by a bidder or candidate to the contracting authority, in particular during the suitability check, the declaration on grounds for exclusion, or in the course of preparing the bid, and constitute a discretionary ground for exclusion.

Last updated: January 2026 · Legal basis: § 124 (1) No. 9 GWB; § 48 VgV; § 83 BVergG 2018

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What are incorrect declarations in procurement law?

Incorrect declarations cover all false, misleading or incomplete statements made by a bidder or candidate to the public contracting authority in the course of a procurement procedure. Under § 124 (1) No. 9 GWB they constitute a discretionary ground for exclusion and, depending on the seriousness of the inaccuracy, can lead to exclusion of the bidder from the procurement procedure or to a time-limited exclusion from future procurement procedures.

Typical cases of incorrect declarations

Incorrect declarations can occur at various stages of the procurement procedure and affect both the suitability check and the bid evaluation.

False suitability evidence

• Exaggeration of references (e.g. stating contract volumes that do not reflect reality)
• Incorrect information about employee numbers or qualifications
• Submission of forged certificates or authorisations
• Concealment of insolvencies or criminal convictions that have to be disclosed

False declarations on grounds for exclusion

In the course of the suitability check, bidders must declare that no mandatory or discretionary grounds for exclusion under §§ 123, 124 GWB apply. Such a declaration is incorrect where:

• Criminal convictions for the offences listed in § 123 GWB are not declared
• Serious professional misconduct is concealed
• Insolvency proceedings or comparable proceedings are not disclosed

False statements in the bid

• Deliberate misstatements about the nature of the service offered
• Inaccurate calculation assumptions presented to the contracting authority as fact
• Incorrect information on subcontractors

Distinction: negligence and intent

The ground for exclusion under § 124 (1) No. 9 GWB does not require intent; even negligently incorrect declarations can give rise to a ground for exclusion. However, the seriousness of the inaccuracy must be taken into account in the discretionary decision on exclusion. A grossly negligent or intentionally false suitability declaration is treated differently from an inadvertently inaccurate reference.

Legal consequences

The legal consequences of incorrect declarations depend on the nature and seriousness of the inaccuracy.

• Exclusion from the ongoing procedure: The contracting authority may (and where appropriate must) exclude the bid
• Exclusion from future procedures: For serious false declarations, exclusion for up to three years can be imposed (§ 126 No. 2 GWB)
• Entry in the Competition Register: Final findings can lead to entry in the Competition Register
• Damages claims: The contracting authority can claim damages for the loss caused by the false declaration
• Criminal consequences: Intentional deception can satisfy the criminal offence of fraud (§ 263 StGB) or subsidy fraud (§ 264 StGB)

Self-cleaning where declarations have been incorrect

Companies that have submitted incorrect declarations can restore their suitability for future procurement procedures through self-cleaning measures under § 125 GWB. To do so, they must in particular:

• Fully clarify and disclose the facts
• Compensate for the damage caused or offer to make good
• Implement effective internal compliance measures that prevent a recurrence

FAQ

Does the contracting authority have to clarify incorrect declarations before excluding a bidder? Yes. Before excluding a bidder, the contracting authority must in principle give the bidder an opportunity to clarify the matter (§ 15 VgV). Only in the case of obviously false statements can an immediate exclusion decision be taken.

What is the difference between incorrect declarations and an incomplete bid? Incomplete bids can be supplemented through a subsequent request (§ 56 VgV). Incorrect declarations, by contrast, concern substantive accuracy and cannot be cured by merely supplying further information.

Does the ground for exclusion also apply to the European Single Procurement Document (ESPD)? Yes. Incorrect information in the ESPD (§ 48 VgV) also gives rise to the ground for exclusion under § 124 (1) No. 9 GWB.

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