Missing Declarations in Public Procurement Law 2026

Missing declarations in the procurement procedure: subsequent request, consequences for exclusion, and handling of forgotten self-declarations and undertakings.

Definition: In procurement law, missing declarations are formal self-declarations, undertakings, or statutorily required confirmations that a bidder or candidate has failed to submit with its offer or request to participate, even though the contracting authority required them.

Last updated: January 2026 · Legal basis: § 56 VgV, § 48 et seq. VgV, BVergG 2018, VOB/A

What are missing declarations?

Missing declarations are one of the most frequent reasons for the exclusion of offers and one of the most common bases for subsequent requests by contracting authorities. In procurement law, "declarations" refers primarily to documents by which the bidder makes a legally binding statement of certain facts or undertakings towards the contracting authority. They differ from "documents" (third-party evidence) in that they are issued by the bidder itself.

Typical required declarations include:

Self-declaration of reliability: Confirmation that no mandatory or discretionary grounds for exclusion exist
Declaration on the bidding consortium: Empowerment of the lead member
Minimum wage undertaking: Confirmation of compliance with statutory minimum wages
Declaration on collective wage compliance: Mandatory in certain federal states (Germany)
Data protection / GDPR declaration
Declaration on conflicts of interest
Subcontractor declaration: Information on engaged subcontractors

Subsequent request for missing declarations

Pursuant to § 56(2) VgV, the contracting authority may and should subsequently request missing self-declarations and comparable company-related declarations.

The option to request subsequently exists only where:

The declaration was generally provided for and required in the procurement procedure
It is a company-related (not offer-related) declaration
The subsequent request would not change the bidder ranking

Declarations relating to the content of the offer itself (e.g. declaration on performance time, warranty declarations on product characteristics) may no longer be requested subsequently after the deadline has expired, since this would breach the principle of equal treatment.

Limits of the subsequent request

The contracting authority must treat all bidders equally: if it is able to subsequently request a missing declaration from one bidder, it must do the same for all other bidders whose declarations are missing.

A subsequent request is excluded where:

The declaration has been expressly defined as a minimum criterion not capable of subsequent submission
The declaration contains substantive statements about the service
The declaration has already been evaluated and the outcome would be altered by subsequent submission

Consequences of missing declarations

Where declarations not capable of subsequent submission are missing, the offer must be excluded.

For declarations capable of subsequent submission, by contrast, exclusion is only permissible if the bidder fails to submit the declaration in time despite being requested. The contracting authority must set a reasonable, clearly defined deadline for subsequent submission and document the request.

Related terms

FAQ

May the contracting authority require its own forms to be used as a declaration? Yes. Contracting authorities frequently provide their own declaration forms in the procurement documents, which bidders must complete and submit. The use of these forms is mandatory for bidders.

Can a missing reliability declaration always be requested subsequently? As a rule, yes, since it is a company-related self-declaration. Exception: the contracting authority has expressly stipulated that the absence of this declaration will lead to mandatory exclusion.

What happens if the bidder misses the deadline for subsequently submitting missing declarations? The offer must be excluded. A further extension or an unprompted submission after the set deadline has expired is not permissible under procurement law.

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