Contracts are awarded to economic operators that are suitable with regard to the subject-matter of the contract. A bidder or an applicant respectively is suitable if he possesses technical knowledge, efficiency and reliability. Economic operators possess the required technical knowledge if they have the knowledge and experience to accomplish the task subject of the contract. Specific experience in similar tasks will be considered. Efficiency requires the economic operator to possess the technical, personal and financial resources to guarantee appropriate performance of the contract. An economic operator qualifies as reliable if he guarantees contract performance in due form and, in particular, in line with applicable provisions of law (tax, social, criminal, etc.). Additionally, he has to provide the ability to carry out the contract within the time limits set by the contracting authorities and follow the instructions given by them.

Prequalification is an option according to paragraph 3 of section 122 GWB for the procurement of supplies, services and works. In order to prequalify, the applicant has to provide proof that he possesses general technical knowledge, efficiency and reliability for a certain type of contract/performance. In this perspective, the economic operator has to submit all of the necessary documents to the competent prequalification authority (so called "PQ-Stelle") once a year. If the provided information withstands the authority's examination, a prequalification certificate containing a certificate number is issued to the company. The economic operator is then listed in the prequalification database of the competent authority and can be tracked via the certificate number. The company can apply for a public procurement by simply providing the certificate number to the contracting authority.

Bidders are enlisted in a so-called "blacklist" if they have been convicted of an offence that leads to a mandatory exclusion from the procurement procedure (see under c. above). Blacklists for bidders exist in several states (e.g. Northrhein-Westphalia, Hessen). A blacklist on the federal level is planned.

Following Art. 57 of Directive 2014/24/EU, section 125 GWB provides that a bidder can self-clean in order to un-list. In this perspective, evidence has to be provided that:

• the bidder has compensated all damages caused by the law infringement or has engaged itself to do so;
• the bidder has actively helped to solve the committed offense; and
• the bidder has taken adequate technical, organisational and personnel-wise measures to prevent future law infringements.

In order to prevent conflicts of interest, a company that was involved in the set-up of a procurement procedure (i.e. drafting of or advising on the specifications) can be excluded from said procedure pursuant to paragraph 1 no. 6 of section 124 GWB if the involvement of the company in the set-up has led to a competitive distortion that cannot be remediated by other, less incisive measures (e.g. longer deadlines to submit a bid).

As a general rule, bidders may combine to submit a bid and form a bidder consortium. Under national procurement law a bidder consortium is treated as one individual bidder. Consequently, individual members of bidding consortia do not have standing to file an appeal for review on behalf of the consortium. As detailed in paragraph 3 of section 160 GWB, only the consortium itself can have a legitimate "interest in the contract", but not individual members who did not submit an offer and therefore could not be awarded the contract. Members of a bidder consortium are free in their choice of legal form for the purpose of the competitive procedure. As a general rule, bidders prefer to establish a consortium in the form of a civil partnership (Gesellschaft des Bürgerlichen Rechts). After the award of the contract, the contracting authority may require that the bidder consortium assumes a specific legal form if this is required for the proper execution of the contract.

Bidder consortia have to name all of their members in the submitted bid and nominate one member as the authorised representative for the conclusion and the execution of the procurement contract.

The bidding consortium as a whole has to possess the required technical knowledge and efficiency as well as the necessary capacities to execute the contract. Every member of the consortium has to prove individually that they do not fulfil the grounds for an exclusion from the competitive procedure (cf. under 4 c.). If deemed necessary, the contracting authority may set up specific requirements as to how a bidder consortium provides the proof of capability and how the contract should be executed by the bidder consortium. Such requirements have to be justified by objective grounds, e.g. the contractual subject-matter, as well as be proportionate.

Bidder consortia may be excluded from the competitive procedure if the formation of the bidder consortium itself is considered anti-competitive und thus could potentially distort free competition. This is the case if the participating companies are competitors on the same market. However, a bidder consortium cannot be excluded on such grounds if the combined bidding is justified because:

• the individual members of the consortium are not able to submit a bid on their own because they lack the required capabilities; or
• the members of the consortium are otherwise engaged in a way that prevents them to make use of their capacities; or
• only the association of the companies enables them to submit a promising bid, i.e. they would not have been able to submit a bid with a chance of receiving the award on their own.

It is up to the participants of a bidding consortium to convince the contracting authority that their association does not present grounds for exclusion.

In contrast, companies which are not competitors on the same market may form a bidder consortium without raising the general suspicion of a competitive distortion.

For contract awards in open procedures it is commonly accepted judicial practice that the establishment of bidding consortia or a change in their composition is generally prohibited between bid submission and bid award. However, the contracting authority may not exclude the newly composed bidder consortium from the competition if it is suitable, i.e. it possesses technical knowledge, efficiency and reliability with regard to the subject matter of the contract (for selection criteria see above under 4 a.).

For restricted procedures as well as negotiated procedure with call for competition, a change of the composition or the establishment of a new bidding consortia is generally prohibited after invitation to bid. However, the exclusion of the newly composed bidder consortium is at the contracting authority's discretion. Accordingly, the contracting authority may

• in the case of a restricted procedure allow the newly composed bidder consortium to submit a bid;
• in the case of a negotiated procedure with call for competition negotiate with the newly composed bidder consortium.

Please note that pursuant to the MT Højgaard und Züblin decision of the European Court of Justice dated 24 May 2016 the contracting authorities may allow the bidder to submit a bid even if the original bidder consortium does not exist anymore. This decision has not been reflected by the national case law, yet.

Related bidders are those which belong to the same group or holding or are otherwise related by corporate means. It is refutably assumed that the participation of related bidders in the same procurement procedure with competitive bids is an anti-trust law violation because it is assumed that information relevant for drafting the bids is exchanged between entities of the same group or holding. However, this assumption can be reversed if the bidders succeed to prove that they have taken appropriate measures to ensure that their bids are drafted independent and confidential. Therefore, the bidders have to disclose:

• if and to what extent the parent company or affiliates may have influenced their bidding;
• if the bidding companies are subjected to a certain group structure/policy which may have influence on their bidding;
• if and on what company level coordination agreements exist;
• if and to what extent technical, organisational and personnel-wise interrelations exist between the companies; and
• if the companies operate spatially divided.

There are no special statutory regulations for foreign companies to participate in a procurement procedure as this would violate the EU procurement law. There are also no special requirements under German Public Procurement law for the legal representative of a foreign company as this would also lead to a restriction of competition.

However, the contracting authorities may require (and regularly do so) that the whole procurement procedure is held in German language which means in particular that

• suitability proofs (e.g. certificates regarding a quality system) which are in a foreign language have to be translated into German,
• the bid (i.e. description of services offered) including all annexes (e.g. handbooks, brochures) have to be submitted in German,
• in case of negotiated procedures negotiations are conducted in German.