In today’s second part of our three-part series, we will inform you about the functions and contents of the Competition Register.
In the future, public prosecutors and other law enforcement agencies will be obliged to register violations of applicable law in the competition register. The obligation to do so exists from one month after the register goes into operation.
Pursuant to Section 6 (1) WRegG, public contracting authorities will in future be obliged to obtain information from the competition register after the opening of bids and before awarding the contract whether the bidder who is to receive the contract has already attracted attention due to unlawful conduct in the past and is subject to a ban on awarding contracts. If the contract volume is below this threshold, a query is not required, but is possible. However, the awarding authority is only entitled to query if there is a concrete intention to award the contract.
The query is made digitally via a portal provided by the Federal Cartel Office. Registration is required for this (Section 2 (1) WRegVO). This portal is to be the interface between the special electronic public authority mailbox (beBPo), the special electronic lawyer mailbox (beA) and DE-Mail.
A range of unlawful conduct and criminal offenses are registrable.
Particular attention should be paid to offenses under criminal tax law, which can cause lasting damage to public budgets. Likewise, bidders who have attracted attention due to money laundering, financing of terrorism and the formation of criminal organizations or who are associated with organized crime should be entered in the competition register.
Companies that have attracted attention by disregarding social requirements, such as the minimum wage law, will also have to expect an entry in the future.
In order to exclude false or incorrect entries, which could cause considerable disadvantages for a company, only legally binding judgments and decisions imposing fines are eligible for registration.
If you are an entrepreneur/company unlawfully affected by an entry in the competition register, feel free to call us.
Before an entry is made in the competition register, each company is given the opportunity to comment on the threatened entry in a hearing and, if necessary, to state and assert objections.
In the event of a hearing, be represented by attorneys specializing in public procurement law.
Furthermore, companies that may be excluded from public competition as a result of an entry in the competition register are given the opportunity to file an application for early deletion of the entry in the register. For this purpose, the company must be able to prove by means of suitable compliance measures, for example consequences at personnel level in connection with the establishment of an effective Compliance Management System (CMS), that a so-called self-cleaning pursuant to Section 125 GWB has taken place.
The competition register provides companies with information regarding self-cleaning measures.
If the Federal Cartel Office considers the self-cleaning measures to be sufficient and effective in the future, an application for removal from the competition register can be granted. Pursuant to Section 11 WRegG, the company concerned can lodge an appeal if the application is not granted. Public contracting authorities, on the other hand, have no right of appeal if they do not agree with the deletion of a company’s blocking order by the Federal Cartel Office.
If such a request is not granted, an entry in the register will be deleted after three years in the case of optional grounds for exclusion and after five years in the case of mandatory grounds for exclusion (Section 7 WRegG).
If you are a contractor/company planning to self-clean to end a procurement hold, feel free to give us a call.
*This legal tip is not a substitute for legal advice in individual cases. By its very nature, it is incomplete, nor is it specific to your case, and it also represents a snapshot in time, as legal principles and case law change over time. It cannot and does not cover all conceivable constellations, serves entertainment and initial orientation purposes and is intended to motivate you to clarify legal issues at an early stage, but not to discourage you from doing so.