Mandatory Grounds for Exclusion in Procurement Law

Mandatory grounds for exclusion require a bidder to be excluded from the procurement procedure where certain convictions or breaches exist.

Definition: Mandatory grounds for exclusion are statutorily defined situations – in particular final convictions for corruption, fraud, money laundering or terrorism – the existence of which obliges the contracting authority to exclude a bidder or candidate from the procurement procedure, without any discretion.

Last updated: January 2026 · Legal basis: Art. 57(1) Directive 2014/24/EU, § 68 BVergG 2018, § 123 GWB

What are mandatory grounds for exclusion?

Unlike discretionary grounds for exclusion, mandatory grounds for exclusion are not at the discretion of the contracting authority: where they exist, the contracting authority must exclude the affected bidder or candidate from the procurement procedure without any weighing of interests. Procurement law contains an exhaustive list of mandatory grounds for exclusion, which essentially focus on serious criminal convictions and certain grave breaches of statutory obligations.

The mandatory grounds for exclusion are harmonised at European level in Art. 57(1) of Directive 2014/24/EU. In Austria, they have been implemented in § 68 BVergG 2018; in Germany, in § 123 GWB.

Significance and function

Mandatory grounds for exclusion serve to safeguard the integrity of the procurement procedure: they are intended to ensure that public contracts are not awarded to undertakings involved in serious offences or breaches.

Elements of mandatory grounds for exclusion

Pursuant to Art. 57(1) Directive 2014/24/EU, undertakings must be excluded if a final conviction exists against them or against their leading personnel for any of the following offences:

Participation in a criminal organisation (Art. 2 Framework Decision 2008/841/JHA)
Active and passive corruption (Art. 3 Convention on the fight against corruption)
Fraud against the financial interests of the Union (Art. 3 Directive (EU) 2017/1371)
Terrorist offences and the financing of terrorism
Money laundering and terrorist financing (Art. 1 Directive 2015/849)
Child labour and human trafficking (Art. 2 Directive 2011/36/EU)

Grounds for exclusion in Austria and Germany

In Austria, § 68 BVergG 2018 additionally covers breaches of wage payment obligations (wage and social dumping), where a corresponding final penalty exists.

In Germany, under § 123 GWB the mandatory grounds for exclusion also include serious breaches of competition law (§ 298 StGB: bid-rigging agreements) and breaches under §§ 129, 129a, 129b StGB (criminal and terrorist organisations).

European Single Procurement Document (ESPD)

Bidders regularly demonstrate the absence of mandatory grounds for exclusion in the above-threshold area by means of the European Single Procurement Document (ESPD). This serves as preliminary evidence and replaces burdensome individual proof during the tender phase. Before the award, the selected bidder is required to submit up-to-date evidence (criminal record extracts etc.).

Self-cleaning

Self-cleaning gives undertakings the opportunity to participate in the procurement procedure despite the existence of a mandatory ground for exclusion, provided that they can demonstrate active measures taken to remedy the ground for exclusion. These include in particular:

Payment of compensation to those harmed
Active cooperation with the investigating authorities
Introduction of suitable compliance measures
Personnel consequences (e.g. removal of responsible persons)

The contracting authority must assess the self-cleaning measures and decide whether they are sufficient (§ 125 GWB; § 71 BVergG 2018).

Legal basis

The mandatory grounds for exclusion are enshrined at several legal levels.

EU: Art. 57(1) Directive 2014/24/EU; Implementing Regulation (EU) 2016/7 (ESPD)
Austria: § 68 BVergG 2018 (mandatory grounds for exclusion), § 71 BVergG 2018 (self-cleaning)
Germany: § 123 GWB (mandatory grounds for exclusion), § 125 GWB (self-cleaning)

Related terms

FAQ

Does a mandatory ground for exclusion also apply if the conviction concerns a leading person of the undertaking and not the undertaking itself? Yes. Art. 57(1) Directive 2014/24/EU and the national implementing legislation expressly also cover convictions of members of the administrative, management or supervisory body, as well as of persons with powers of representation, decision or control. The undertaking may, however, seek participation in the procurement procedure through self-cleaning – in particular by removing the person concerned.

How long does a mandatory ground for exclusion apply? The duration of the exclusion is not uniformly regulated at European level. In Germany, the standard period under § 123(3) GWB is five years from the date of the final conviction. In Austria, under § 68 BVergG 2018, the duration of the conviction is generally the benchmark; contracting authorities must take the specific circumstances into account.

Can mandatory grounds for exclusion be fully overcome through self-cleaning? Yes, if the self-cleaning measures are recognised as sufficient. The contracting authority must assess this in the exercise of its proper discretion. A rejection of the self-cleaning must be reasoned and is open to review.

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