Competition Register for Public Procurement in full operation – obligation to consult the register and rights to information now applicable

The obligation for contracting entities to consult the Bundeskartellamt’s Competition Register as well as various rights to information relating to the register are applicable from today. The Federal Ministry for Economic Affairs and Climate Action (BMWK) had previously published a corresponding notice in the Federal Gazette of 29 October 2021 (see here). As a result, the Competition Register is now in full operation.

The national Competition Register for Public Procurement electronically provides public contracting authorities, sector contracting entities and concession grantors with information helping them to assess whether a company must or can be excluded from a public procurement procedure for having committed economic offences.

The Bundeskartellamt had provided information on the previous steps towards the register’s full operation in its press releases of 25 March 2021 and 29 October 2021. The obligation to communicate relevant offences to the registry authority has already been in place since December 2021. It has also been possible to consult the register on a voluntary basis since this date.

Andreas Mundt, President of the Bundeskartellamt: “This is an important day for the Competition Register. As from today, contracting authorities have to consult the Competition Register in public procurement procedures when awarding contracts exceeding certain order values. This will make it possible to prove more often than before that grounds for excluding a certain bidder exist. The Competition Register thus plays an important part in ensuring that public contracts and concessions are only awarded to those companies which have not committed any serious offences and have acted fairly in competition.”

More specifically, the following applies from today:

• In procurement procedures involving an estimated order value of 30,000 euros (excluding VAT) contracting authorities are obliged to consult the Competition Register. This obligation also applies to sector contracting entities and concession grantors in the event the threshold values which are also decisive for the applicability of EU procurement law are reached.
• Upon application, companies and natural persons can obtain information on the content of the Competition Register relating to them (right to information).
• Bodies maintaining an official list pursuant to Article 64 of the EU Procurement Directive (Directive 2014/24/EU) for prequalification purposes may, upon application and subject to the relevant company’s consent, obtain information on the content of the Competition register relating to the company in question.

Now that the obligation to consult the Competition Register is applicable, the previously existing obligation for contracting authorities to consult the corruption registers of the Länder and the Central Trade and Industry Register ceases to apply. However, the Central Trade and Industry Register can still be consulted on a voluntary basis for a transitional period of three years.