Statement on the ministerial draft of the 2026 amendment to the Federal Procurement Act

The CMS public procurement law team has drafted a statement on key points of the ministerial draft of the 2026 amendment to the Federal Procurement Act, which has been published on the Parliament's website.

CMS criticizes the massive increase in the threshold value for construction contracts in restricted procedures without publication. Regarding the obligation to obtain at least three bids or price quotations in an ‘unbureaucratic’ manner for direct awards of EUR 50,000 or more, CMS calls for the granting of substantive, procurement-specific legal protection.

CMS is also critical of the planned inclusion of criminally sanctioned bid-rigging cartels in the list of grounds for exclusion under Section 78(1)(1), while at the same time retaining the explicit grounds for exclusion determined by EU law in Section 78(1)(4).

Not least due to the short review period, CMS addresses only individual points of the ministerial draft that are of particular importance in its statement below. There are also concerns about the new ground for exclusion based on a final decision by a court or administrative authority without the possibility of self-cleaning.

The obligation to cooperate with the public contracting authority with regard to antitrust damages caused is also viewed critically, especially since the ECJ has ruled that the parties must be free to seek judicial clarification.

The new obligation to disclose information regarding separately contestable decisions appears excessive in cases where a revocation or award has already taken place.

Regarding the new fee regulation, improvements are proposed, particularly in cases where an appeal is directed against the absence of a notice.