Price Fixing in Public Procurement Law 2026

Price fixing in public procurement: anti-competitive agreements between bidders on tender prices and their consequences in the tender procedure.

Definition: A price-fixing agreement in the procurement sense is an unlawful agreement between two or more tenderers by which they coordinate their tender prices or other competitive parameters in order to distort competition in the tender procedure.

Last updated: January 2026 · Legal basis: Art. 101 TFEU, § 1 GWB, § 298 StGB, § 124 GWB, BVergG 2018

What is price fixing?

Price-fixing agreements between bidders are among the most serious breaches of competition law and procurement law and can entail both civil and criminal consequences. When companies agree before submitting their tenders on who is to receive the contract and what prices the other tenderers are to quote, the fair competition required by procurement law is deliberately undermined. In such cases, the contracting authority pays a higher price than under genuine competition.

Forms of price fixing

Price-fixing agreements can take various forms, all of which are equally prohibited:

Bid rotation: bidders agree who is to receive which contract, with the others deliberately submitting excessively high tenders.
Cover bidding: one or more bidders deliberately submit non-competitive tenders to ensure that a particular bidder receives the contract.
Market sharing: companies divide the market geographically or by contracting authority and refrain from bidding against each other.
Price leadership: bidders agree on a common price level.

Competition law framework

Price-fixing agreements are prohibited and void under Art. 101 TFEU and § 1 GWB. The cartel prohibition covers all agreements and concerted practices that have as their object or effect the prevention, restriction or distortion of competition. The German Federal Cartel Office and the national competition authorities can impose fines of up to 10% of the worldwide annual turnover of the company concerned.

Criminal consequences

In Germany, the manipulation of tenders and price-fixing agreements is a criminal offence under § 298 StGB and can be punished with imprisonment of up to five years. In Austria, the offence of anti-competitive collusion in tendering is regulated in § 168b StGB. Both the agreement itself and the submission of a tender based on collusion are punishable.

Public procurement consequences

Where there is a reasonable suspicion of price fixing, the contracting authority may exclude the affected company from the tender procedure pursuant to § 124 (1) no. 4 GWB. Exclusion is mandatory where collusion is proven and discretionary where suspicion is reasonable. Companies can overcome the ground for exclusion through self-cleaning measures (§ 125 GWB).

Detection of price fixing

Contracting authorities can detect price fixing through statistical analysis of tenders and certain suspicion patterns. Typical indicators are: conspicuous price patterns across several tender procedures, identical calculation errors in several tenders, repeatedly identical bidder constellations, or a bidder consistently coming in just below the second-placed offer.

FAQ

How can I report price fixing? Price fixing can be reported to the Federal Cartel Office (Germany) or the Federal Competition Authority (Austria). Both have leniency programmes allowing fine reductions for whistle-blowers.

Can a company continue to participate despite a suspicion? The contracting authority has discretion in case of suspicion; it can exclude the company but must justify its suspicion.

What are self-cleaning measures? Self-cleaning covers measures such as dismissing those responsible, paying damages and introducing compliance programmes, in order to restore confidence in future compliance with the law.

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