Form „Grounds for Exclusion and Self-Cleaning Measures“

(Annex 6 to the Letter of Tender)

[To be completed and substantiated by the tenderer / each member of a group of tenderers, as well as by any third party on whose suitability the tenderer / group of tenderers relies, and by subcontractors]


Name of the tenderer /	Please enter here
of the member of the group of tenderers /	Please enter here
of the capacity-providing undertaking	Please enter here
address:	Please enter here

DECLARATION ON GROUNDS FOR EXCLUSION

Note: Economic operators interested in the contract must declare whether any grounds for exclusion apply to them. The following procurement law exclusion provisions must be observed:

- Section 123 GWB (see Annex 1);
- Section 124 GWB (see Annex 2);
- Section 124(2) GWB in conjunction with Section 19(1) in conjunction with Section 21 of the Minimum Wage Act (Mindestlohngesetz, MiLoG – see Annex 3);
- Section 124(2) GWB in conjunction with Section 21(1) in conjunction with Section 23 of the Posted Workers Act (Arbeitnehmer-Entsendegesetz, AEntG – see Annex 4);
- Section 124(2) GWB in conjunction with Section 98c(1) of the Residence Act (Aufenthaltsgesetz, AufenthG – see Annex 5);
- Section 124(2) GWB in conjunction with Section 21(1), sentence 1 and 2, of the Act to Combat Undeclared Work (Schwarzarbeitsbekämpfungsgesetz, SchwarzArbG – see Annex 6);
- Section 124(2) GWB in conjunction with Section 22 of the Supply Chain Due Diligence Act (Lieferkettensorgfaltspflichtengesetz, LkSG – see Annex 7)

We hereby declare that

[Please tick the applicable option]

[ ] none of the grounds for exclusion set out in the above-mentioned provisions apply to us.

[ ] the following grounds for exclusion set out in the above-mentioned provisions apply to us (if this option is ticked, the text field below must be completed): Please enter here: Please enter here

This information is complete and accurate.

DECLARATION ON SELF-CLEANING MEASURES AND RESTORATION OF RELIABILITY

[Tick only if applicable]

[ ] We have taken self-cleaning measures or measures to restore our reliability in accordance with Section IX.5.3 of the Bidding Conditions. For further details, we refer to Annex .

DECLARATION ON SELF-CLEANING MEASURES IN RESPECT OF BREACHES OF OBLIGATIONS TO PAY TAXES, LEVIES AND SOCIAL SECURITY CONTRIBUTIONS

[Tick only if applicable]

[ ] We have taken self-cleaning measures in accordance with Section IX.5.4 of the Bidding Conditions. For further details, we refer to Annex .


Place	Date	Name of authorised signatory[1]	Company
Please enter here	Please enter here	Please enter here	Please enter here

Annex 1

Section 123 GWB: Mandatory Grounds for Exclusion

(1) Contracting authorities shall exclude an undertaking from participation in a procurement procedure at any point during the procedure if they are aware that a person whose conduct is attributable to the undertaking pursuant to subsection (3) has been convicted by final judgment, or that a fine has been imposed on the undertaking by final decision pursuant to Section 30 of the Act on Regulatory Offences (OWiG), in respect of an offence under:

Section 129 of the Criminal Code (StGB) (formation of criminal organisations), Section 129a of the Criminal Code (formation of terrorist organisations) or Section 129b of the Criminal Code (criminal and terrorist organisations abroad),
Section 89c of the Criminal Code (financing of terrorism), or for participation in such an offence, or for the provision or collection of funds with knowledge that those funds are to be used in whole or in part to commit an offence under Section 89a(2)(2) of the Criminal Code,
Section 261 of the Criminal Code (money laundering),
Section 263 of the Criminal Code (fraud), where the offence is directed against the budget of the European Union or against budgets managed by the European Union or on its behalf,
Section 264 of the Criminal Code (subsidy fraud), where the offence is directed against the budget of the European Union or against budgets managed by the European Union or on its behalf,
Section 299 of the Criminal Code (bribery and corruption in commercial transactions), Sections 299a and 299b of the Criminal Code (bribery and corruption in the healthcare sector),
Section 108e of the Criminal Code (bribery and corruption of holders of public office),
Sections 333 and 334 of the Criminal Code (granting of advantages and active bribery), each also in conjunction with Section 335a of the Criminal Code (foreign and international officials),
Article 2, Section 2, of the Act on Combating International Bribery (IntBestG) (bribery of foreign members of parliament in connection with international business transactions), or
Sections 232, 232a(1) to (5), and Sections 232b to 233a of the Criminal Code (human trafficking, forced prostitution, forced labour, exploitation of labour, exploitation by deprivation of liberty).

(2) A conviction or the imposition of a fine within the meaning of subsection (1) shall be treated equally as a conviction or the imposition of a fine under equivalent provisions of other States.

(3) The conduct of a person convicted by final judgment shall be attributable to an undertaking if that person acted as a person responsible for the management of the undertaking; this includes the supervision of the management or the exercise of other controlling powers in a managerial capacity.

(4) Contracting authorities shall exclude an undertaking from participation in a procurement procedure at any point during the procedure if:

the undertaking has failed to fulfil its obligations relating to the payment of taxes, levies or social security contributions, and this has been established by a final court judgment or by an enforceable administrative decision, or
the contracting authority is able to demonstrate by other appropriate means a breach of an obligation referred to in point 1.

The first sentence shall not apply if the undertaking has fulfilled its obligations by making payment or by undertaking to pay the taxes, levies and social security contributions due, including any interest, surcharges for late payment and penalties.

(5) Exclusion pursuant to subsection (1) may be waived where overriding reasons of public interest so require. Exclusion pursuant to the first sentence of subsection (4) may be waived where overriding reasons of public interest so require or where exclusion would be manifestly disproportionate. Section 125 shall remain unaffected.

Annex 2

§ 124 GWB: Optional grounds for exclusion

(1) Contracting authorities may, having regard to the principle of proportionality, exclude an undertaking from participation in a procurement procedure at any point during the procedure if:

the undertaking has demonstrably violated applicable obligations in the fields of environmental, social or labour law in the performance of public contracts,
the undertaking is insolvent, insolvency proceedings or comparable proceedings in respect of its assets have been applied for or opened, the opening of such proceedings has been refused due to insufficiency of assets, the undertaking is in the process of being wound up, or has ceased to carry on its activities,
the undertaking has demonstrably committed a serious act of misconduct in the course of its professional activities which renders its integrity questionable; Section 123(3) shall apply mutatis mutandis,
the contracting authority has sufficiently plausible indications to conclude that the undertaking has entered into agreements with other undertakings or has coordinated its conduct with other undertakings in a manner aimed at or having the effect of preventing, restricting or distorting competition,
a conflict of interest arising in connection with the conduct of the procurement procedure exists which could impair the impartiality and independence of a person acting on behalf of the contracting authority, and which cannot be effectively remedied by other, less intrusive measures,
a distortion of competition results from the prior involvement of the undertaking in the preparation of the procurement procedure, and such distortion cannot be remedied by other, less intrusive measures,
the undertaking has shown significant or persistent deficiencies in the performance of a material requirement under a prior public contract or concession contract, which led to early termination of that contract, to a claim for damages, or to a comparable legal consequence,
the undertaking has made serious misrepresentations, has withheld information with respect to grounds for exclusion or selection criteria, is unable to provide the required supporting documents, or
the undertaking:

a) has attempted to unduly influence the decision-making process of the contracting authority,

b) has attempted to obtain confidential information that may confer upon it undue advantages in the procurement procedure, or

c) has negligently or intentionally provided misleading information that could materially influence decisions taken by the contracting authority in the award procedure, or has attempted to provide such information.

(2) Section 21 of the Posted Workers Act (AEntG), Section 98c of the Residence Act (AufenthG), Section 19 of the Minimum Wage Act (MiLoG), Section 21 of the Act to Combat Undeclared Work (SchwarzArbG) and Section 22 of the Supply Chain Due Diligence Act (LkSG) of 16 July 2021 (Federal Law Gazette I, p. 2959) shall remain unaffected.

Annex 3

Section 19 MiLoG: Exclusion from the Award of Public Contracts

(1) Candidates who have been fined at least two thousand five hundred euros for a regulatory offence pursuant to Section 21 shall, for an appropriate period until they have demonstrably restored their reliability, be excluded from participation in competitive tendering procedures for supply, works or services contracts of the contracting authorities referred to in Sections 99 and 100 of the Act Against Restraints of Competition (GWB).

(2) The authorities competent for the prosecution or sanctioning of regulatory offences pursuant to Section 21 may, upon request, provide contracting authorities within the meaning of Section 99 of the Act Against Restraints of Competition and those bodies that maintain pre-qualification lists or contractor and supplier registers approved by contracting authorities with the necessary information.

(3) Contracting authorities within the meaning of subsection (2) shall, in the course of their activities, request information from the competition register (Wettbewerbsregister) concerning final decisions imposing fines for a regulatory offence pursuant to Section 21(1) or (2), or shall require candidates to submit a declaration that the conditions for exclusion pursuant to subsection (1) are not met. Where a candidate submits such a declaration, contracting authorities within the meaning of subsection (2) may at any time additionally request information from the competition register.

(4) For contracts with a value of EUR 30,000 or more, the contracting authority within the meaning of subsection (2) shall, prior to the award of the contract, request information from the competition register in respect of the candidate to whom the contract is to be awarded.

(5) The candidate shall be heard before a decision on exclusion is taken.

Section 21 MiLoG: Provisions on Fines

(1) Any person who commits a regulatory offence by wilfully or negligently:

contrary to Section 15, sentence 1, in conjunction with Section 5(1), sentence 1, points 1 or 3, of the Act to Combat Undeclared Work, failing to permit an inspection or failing to cooperate in an inspection,
contrary to Section 15, sentence 1, in conjunction with Section 5(1), sentence 1, point 2, of the Act to Combat Undeclared Work, failing to permit entry to premises or business premises,
contrary to Section 15, sentence 1, in conjunction with Section 5(5), sentence 1, of the Act to Combat Undeclared Work, failing to transmit data, or transmitting data that is incorrect, incomplete, not in the prescribed manner, or not in good time,
contrary to Section 16(1), sentence 1, or (3), sentence 1, failing to submit a notification, or submitting one that is incorrect, incomplete, not in the prescribed manner, or not in good time, or failing to forward such a notification, or forwarding one that is incorrect, incomplete, not in the prescribed manner, or not in good time,
contrary to Section 16(1), sentence 3, also in conjunction with subsection (3), sentence 2, failing to make a notification of change, or making one that is incorrect, incomplete, not in the prescribed manner, or not in good time,
contrary to Section 16(2) or (4), failing to attach a declaration, attaching one that is incorrect, or failing to do so in good time,
contrary to Section 17(1), sentence 1, also in conjunction with sentence 2, failing to prepare records, or preparing records that are incorrect, incomplete or not in good time, or failing to retain them for at least two years,
contrary to Section 17(2), failing to keep a document available, or failing to keep a document that is correct, complete or in the prescribed manner available, or
contrary to Section 20, failing to pay, or failing to pay in good time, the remuneration referred to therein.

(2) Any person who, as a contractor, has works or services performed to a significant extent by engaging another contractor whom that person knows or negligently fails to know is, in performing that contract:

contrary to Section 20, failing to pay, or failing to pay in good time, the remuneration referred to therein, or
engaging a subcontractor, or permitting a subcontractor to carry out work, who, contrary to Section 20, fails to pay, or fails to pay in good time, the remuneration referred to therein,

commits a regulatory offence.

(3) The regulatory offence may be sanctioned, in the cases referred to in subsection (1)(9) and subsection (2), with a fine of up to five hundred thousand euros, and in the remaining cases with a fine of up to thirty thousand euros.

(4) The competent administrative authority within the meaning of Section 36(1)(1) of the Act on Regulatory Offences shall be the authorities referred to in Section 14, each within their respective area of competence.

(5) The Federal Administration Enforcement Act shall apply to enforcement in favour of federal authorities and federal bodies governed by public law under federal direct supervision, as well as to the execution of a property arrest order pursuant to Section 111e of the Code of Criminal Procedure in conjunction with Section 46 of the Act on Regulatory Offences by the authorities referred to in Section 14.

Annex 4

Section 21 AEntG: Exclusion from the Award of Public Contracts

(1) Candidates who have been fined at least two thousand five hundred euros for a regulatory offence pursuant to Section 23 shall, for an appropriate period until they have demonstrably restored their reliability, be excluded from participation in competitive tendering procedures for supply, works or services contracts of the contracting authorities referred to in Sections 99 and 100 of the Act Against Restraints of Competition (GWB). The same shall apply even before the initiation of fine proceedings where, given the state of the evidence in the individual case, there is no reasonable doubt as to a grave misconduct within the meaning of the first sentence.

(2) The authorities competent for the prosecution or sanctioning of regulatory offences pursuant to Section 23 may, upon request, provide contracting authorities within the meaning of Section 99 of the Act Against Restraints of Competition and those bodies that maintain pre-qualification lists or contractor and supplier registers approved by contracting authorities with the necessary information.

(3) Contracting authorities within the meaning of subsection (2) shall, in the course of their activities, request information from the competition register concerning final decisions imposing fines for a regulatory offence pursuant to Section 23(1) or (2), or shall require candidates to submit a declaration that the conditions for exclusion pursuant to subsection (1) are not met. Where a candidate submits such a declaration, contracting authorities within the meaning of subsection (2) may at any time additionally request information from the competition register.

(5) The candidate shall be heard before a decision on exclusion is taken.

Section 23 AEntG: Provisions on Fines

(1) Any person who commits a regulatory offence by wilfully or negligently:

contrary to Section 8(1), sentence 1, or (3), failing to grant, or failing to grant in good time, a working condition the observance of which is monitored by the customs authorities pursuant to Section 16, or failing to make, or failing to make in good time, a contribution,
contrary to Section 17, sentence 1, in conjunction with Section 5(1), sentence 1, points 1 or 3, of the Act to Combat Undeclared Work, failing to permit an inspection or failing to cooperate in an inspection,
contrary to Section 17, sentence 1, in conjunction with Section 5(1), sentence 1, point 2, of the Act to Combat Undeclared Work, failing to permit entry to premises or business premises,
contrary to Section 17, sentence 1, in conjunction with Section 5(5), sentence 1, of the Act to Combat Undeclared Work, failing to transmit data, or transmitting data that is incorrect, incomplete, not in the prescribed manner, or not in good time,
contrary to Section 18(1), sentence 1, or (3), sentence 1, failing to submit a notification, or submitting one that is incorrect, incomplete, not in the prescribed manner, or not in good time, or failing to forward such a notification, or forwarding one that is incorrect, incomplete, not in the prescribed manner, or not in good time,
contrary to Section 18(1), sentence 3, also in conjunction with subsection (3), sentence 2, failing to make a notification of change, or making one that is incorrect, incomplete, not in the prescribed manner, or not in good time,
contrary to Section 18(2) or (4), failing to attach a declaration, attaching one that is incorrect, or failing to do so in good time,
contrary to Section 19(1), sentence 1, also in conjunction with sentence 2, failing to prepare records, or preparing records that are incorrect, incomplete or not in good time, or failing to retain them for at least two years, or
contrary to Section 19(2), failing to keep a document available, or failing to keep a document that is correct, complete or in the prescribed manner available.

contrary to Section 8(1), sentence 1, or (3), failing to grant, or failing to grant in good time, a working condition the observance of which is monitored by the customs authorities pursuant to Section 16, or failing to make, or failing to make in good time, a contribution, or
engaging a subcontractor, or permitting a subcontractor to carry out work, who, contrary to Section 8(1), sentence 1, or (3), fails to grant, or fails to grant in good time, a working condition the observance of which is monitored by the customs authorities pursuant to Section 16, or fails to make, or fails to make in good time, a contribution,

commits a regulatory offence.

(3) The regulatory offence may be sanctioned, in the cases referred to in subsection (1)(1) and subsection (2), with a fine of up to five hundred thousand euros, and in the remaining cases with a fine of up to thirty thousand euros.

(4) The competent administrative authority within the meaning of Section 36(1)(1) of the Act on Regulatory Offences shall be the authorities referred to in Section 16, each within their respective area of competence.

Annex 5

Section 98c AufenthG: Exclusion from the Award of Public Contracts

(1) Contracting authorities within the meaning of Section 99 of the Act Against Restraints of Competition may exclude a candidate or tenderer from competition for a supply, works or services contract if that candidate or tenderer, or their statutory representative:

has been subject by final decision to a fine of at least two thousand five hundred euros pursuant to Section 404(2)(3) of the Social Code, Book III (SGB III), or
has been convicted by final judgment pursuant to Sections 10, 10a or 11 of the Act to Combat Undeclared Work to a custodial sentence of more than three months or a financial penalty of more than 90 daily rates.

Exclusions pursuant to the first sentence may be imposed for a period of up to five years from the date on which the fine, custodial sentence or financial penalty became final, until reliability has been demonstrably restored, depending on the severity of the infringement underlying the fine, custodial sentence or financial penalty.

(2) Subsection (1) shall not apply where the infringement referred to in the first sentence of subsection (1) consisted in the unlawful employment of a citizen of the European Union.

(3) Where a contracting authority avails itself of the option under subsection (1), Section 21(2) to (5) of the Posted Workers Act (AEntG) shall apply mutatis mutandis

Annex 6

Section 21 SchwarzArbG: Exclusion from Public Contracts

(1) Candidates shall, for a period of up to three years, be excluded from participation in competitive tendering procedures for supply, works or services contracts of the contracting authorities referred to in Sections 99 and 100 of the Act Against Restraints of Competition (GWB) where they, or their statutory representative, have been convicted under:

Section 8(1)(2), Sections 10 to 11 [of the Act to Combat Undeclared Work],
Section 404(1) or (2)(3) of the Social Code, Book III (SGB III),
Sections 15, 15a, 16(1)(1), (1c), (1d), (1f) or (2) of the Temporary Employment Act (AÜG), or
Section 266a(1) to (4) of the Criminal Code (StGB),

to a custodial sentence of more than three months or a financial penalty of more than ninety daily rates, or have been subject to a fine of at least two thousand five hundred euros. The same shall apply even before the initiation of criminal or fine proceedings where, given the state of the evidence in the individual case, there is no reasonable doubt as to a grave misconduct within the meaning of the first sentence. The authorities competent for prosecution or sanctioning pursuant to the first sentence, points 1 to 4, may, upon request, provide contracting authorities within the meaning of Section 99 of the Act Against Restraints of Competition and those bodies that maintain pre-qualification lists or contractor and supplier registers approved by contracting authorities with the necessary information. Contracting authorities within the meaning of the third sentence shall, in the course of their activities, request information from the competition register or require the candidate to submit a declaration that the conditions for exclusion pursuant to the first or second sentence are not met; even where a candidate submits such a declaration, contracting authorities may at any time additionally request information from the competition register. For contracts with a value of EUR 30,000 or more, the contracting authority within the meaning of the third sentence shall, prior to the award of the contract, request information from the competition register in respect of the candidate to whom the contract is to be awarded. The candidate shall be heard before a decision on exclusion is taken.

(2) A misconduct within the meaning of subsection (1) shall be equivalent to a breach of ancillary obligations within the meaning of Section 241(2) of the Civil Code (BGB).

Annex 7

Section 22 LkSG: Exclusion from the Award of Public Contracts

(1) Undertakings shall be excluded from participation in procurement procedures for supply, works or services contracts of the contracting authorities referred to in Sections 99 and 100 of the Act Against Restraints of Competition (GWB), until they have demonstrably completed the self-cleaning process pursuant to Section 125 of the Act Against Restraints of Competition, where those undertakings have been found by final decision to have committed an infringement pursuant to Section 24(1) and have been fined in accordance with subsection (2). The exclusion pursuant to the first sentence may only be imposed within a reasonable period of up to three years.

(2) An exclusion pursuant to subsection (1) requires a finally established infringement sanctioned by a fine of at least one hundred and seventy-five thousand euros. By way of derogation from the first sentence:

in the cases referred to in Section 24(2), sentence 2, in conjunction with Section 24(2), sentence 1, point 2, a finally established infringement sanctioned by a fine of at least one million five hundred thousand euros,
in the cases referred to in Section 24(2), sentence 2, in conjunction with Section 24(2), sentence 1, point 1, a finally established infringement sanctioned by a fine of at least two million euros, and
in the cases referred to in Section 24(3), a finally established infringement sanctioned by a fine of at least 0.35 per cent of average annual turnover

is required.

(3) The undertaking shall be heard before a decision on exclusion is taken.

Section 24 LkSG: Provisions on Fines

(1) Any person who commits a regulatory offence by wilfully or negligently:

contrary to Section 4(3), sentence 1, failing to ensure that a determination referred to therein has been made,
contrary to Section 5(1), sentence 1, or Section 9(3)(1), failing to carry out a risk analysis, or carrying one out incorrectly, incompletely or not in good time,
contrary to Section 6(1), failing to take a preventive measure, or failing to do so in good time,
contrary to Section 6(5), sentence 1, Section 7(4), sentence 1, or Section 8(5), sentence 1, failing to carry out a review, or failing to do so in good time,
contrary to Section 6(5), sentence 3, Section 7(4), sentence 3, or Section 8(5), sentence 2, failing to update a measure, or failing to do so in good time,
contrary to Section 7(1), sentence 1, failing to take a remedial measure, or failing to do so in good time,
contrary to:

a) Section 7(2), sentence 1, or

b) Section 9(3)(3),

failing to draw up a concept, or failing to do so in good time, or failing to implement it, or failing to do so in good time,

contrary to Section 8(1), sentence 1, also in conjunction with Section 9(1), failing to ensure that a complaints mechanism has been established,
contrary to Section 10(1), sentence 2, failing to retain documentation, or failing to retain it for at least seven years,
contrary to Section 10(2), sentence 1, preparing a report incorrectly,
contrary to Section 10(2), sentence 1, failing to make a report referred to therein publicly accessible, or failing to do so in good time,
contrary to Section 12, failing to submit a report, or failing to do so in good time, or
failing to comply with an enforceable order pursuant to Section 13(2) or Section 15, sentence 2, point 2.

(2) The regulatory offence may be sanctioned:

in the cases referred to in subsection (1):

a) points 3, 7(b) and 8, and

b) points 6 and 7(a),

with a fine of up to eight hundred thousand euros,

in the cases referred to in subsection (1), points 1, 2, 4, 5 and 13, with a fine of up to five hundred thousand euros, and
in the remaining cases of subsection (1), with a fine of up to one hundred thousand euros.

In the cases referred to in the first sentence, points 1 and 2, Section 30(2), sentence 3, of the Act on Regulatory Offences shall apply.

(3) In the case of a legal person or association of persons with an average annual turnover of more than EUR 400 million, a regulatory offence pursuant to subsection (1)(6) or (7)(a) may, by way of derogation from subsection (2), sentence 2, in conjunction with sentence 1, point 1(b), be sanctioned with a fine of up to 2 per cent of average annual turnover. For the purpose of determining the average annual turnover of the legal person or association of persons, the worldwide turnover of all natural and legal persons and all associations of persons during the last three financial years preceding the authority's decision shall be taken as the basis, to the extent that those persons and associations of persons operate as a single economic unit. The average annual turnover may be estimated.

(4) The basis for the assessment of the fine imposed on legal persons and associations of persons shall be the gravity of the regulatory offence. In assessing the fine, the financial circumstances of the legal person or association of persons shall be taken into account. In assessing the fine, the circumstances that speak for and against the legal person or association of persons shall be weighed against each other. The following factors shall be taken into account in particular:

the culpability attributable to the perpetrator of the regulatory offence,
the motives and objectives of the perpetrator of the regulatory offence,
the gravity, extent and duration of the regulatory offence,
the manner in which the regulatory offence was committed, in particular the number of perpetrators and their position within the legal person or association of persons,
the effects of the regulatory offence,
prior regulatory offences for which the legal person or association of persons is responsible pursuant to Section 30 of the Act on Regulatory Offences, also in conjunction with Section 130 of the Act on Regulatory Offences, as well as measures taken prior to the regulatory offence to prevent and detect regulatory offences,
the efforts of the legal person or association of persons to uncover the regulatory offence and to remedy the harm caused, as well as measures taken after the regulatory offence to prevent and detect regulatory offences,
the consequences of the regulatory offence suffered by the legal person or association of persons.

(5) The competent administrative authority within the meaning of Section 36(1)(1) of the Act on Regulatory Offences shall be the Federal Office for Economic Affairs and Export Control (BAFA). Section 19(1), sentences 2 and 3, shall apply to the legal and technical supervision of the Federal Office.

Text form pursuant to Section 126b BGB is sufficient. ↑

Annex 6_to LoT_Grounds for Exclusion and Self-Cleaning Measures.docx