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12 Formular Ausschlussgründe
Vergabenummer:
Content
1 Self-declaration of non-existence of grounds for exclusion .............................. 1
1.1 Erklärung entsprechend § 123 GWB ......................................................................... 2
1.2 Declaration in accordance with Section 124(1) No. 2 GWB ..................................... 2
1.3 Declaration in accordance with Section 124(1) Nos. 1, 3 to 7, (2) GWB .................. 3
1.4 Note (cf. Section 126 GWB) ...................................................................................... 4
1.5 CONFIRMATION OF THE ACCURACY OF THE INFORMATION ................................... 4
2 Self-declaration on sanctions against Russia .................................................... 5
2.1 Persons, organisations or institutions ...................................................................... 5
2.2 Subcontracts, suppliers and borrowing of qualifications ......................................... 5
2.3 CONFIRMATION OF THE ACCURACY OF THE INFORMATION ................................... 6
3 Attachments ................................................................................................... 7
3.1 § 123 GWB ................................................................................................................ 7
3.2 Article 5k Council Regulation (EU) 2022/576............................................................ 8
1 Self-declaration of non-existence of grounds for exclusion
To prove that there are no grounds for exclusion, you are required to submit the following self- declaration. If you are based outside the Federal Republic of Germany, your declaration must refer to the legal provisions of the country in which you are established. Your company may be excluded from participating in the competition in accordance with Section 124 (1) No. 8 of the Act against Restraints of Competition (GWB) if you commit serious deception with regard to grounds for exclusion or suitability criteria, withhold information or are unable to provide the necessary evidence.
If there are doubts about the accuracy of the declaration submitted, these will be clarified on a case-by-case basis and further evidence (e.g. an official certificate of good conduct) may be
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requested. The tender documentation must be completed in full and enclosed with your tender. Please note that the information on the size of the company is used for statistical purposes. The remaining information is required for the register information to be obtained prior to the award of the contract, in particular in accordance with Section 150a of the Trade Regulation Act, Sec- tion 19 of the Minimum Wage Act, Section 21 of the Posted Workers Act and Section 6 of the Competition Register Act.
1.1 Erklärung entsprechend § 123 GWB
You must submit a declaration regarding any final convictions or final assessments of a fine in accordance with Section 30 OWiG in the last five years (the date on which the conviction be- came final is decisive).
I declare that I/we have taken note of Section 123 GWB (the wording of the provision can be found under 3.1) and that there are no grounds for exclusion under Section 123 GWB for me/us ☐ Yes. ☐ No.
If one or more grounds for exclusion apply to you, please explain the circumstances in detail and state whether and, if so, which self-cleaning measures within the meaning of Section 125(1) GWB you have implemented. Please explain this in a separate appendix to be attached to this declaration.
1.2 Declaration in accordance with Section 124(1) No. 2 GWB
| Do one or more of the following optional grounds for exclusion under Section 124(1) No. 2 GWB apply to you? Please tick the appropriate box. | Yes | No |
|---|---|---|
| I or my/our company is insolvent. | ☐ | ☐ |
| Insolvency proceedings or similar proceedings have been applied for. | ☐ | ☐ |
| Insolvency proceedings or similar proceedings have been opened. | ☐ | ☐ |
| An application to open insolvency proceedings or similar proceedings has been rejected due to lack of assets. | ☐ | ☐ |
| An insolvency plan has been legally confirmed. | ☐ | ☐ |
| I or my/our company is in liquidation. | ☐ | ☐ |
| I or my/our company has ceased trading. | ☐ | ☐ |
If you have answered ‘Yes’ to one or more of the above questions and therefore have one or more grounds for exclusion, please explain the circumstances in detail and explain why you are still able to fulfil the contract under these circumstances. Please explain this in a separate atta- chment to this declaration.
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1.3 Declaration in accordance with Section 124(1) Nos. 1, 3 to 7, (2) GWB
| Do one or more of the following optional grounds for exclusion pursu- ant to Section 124(1) Nos. 1, 3 to 7, (2) GWB apply to you? Please tick the appropriate box. | Yes | No |
|---|---|---|
| Have you violated applicable environmental, social or labour law obligati- ons in the performance of public contracts? | ☐ | ☐ |
| Have you or a person whose conduct is attributable to the company — pursuant to Section 21 (1) sentence 1 or 2 of the Act to Combat Illegal Employment, — pursuant to Section 21 of the Posted Workers Act, — pursuant to Section 98c of the Residence Act or — pursuant to Section 19 of the Minimum Wage Act, with a prison sentence of more than three months or a fine of more than 90 daily rates or a fine of more than 2,500 euros? The conduct of a person is attributable to a company if that person acted as the person responsible for managing the company; This also includes supervising the manage- ment or otherwise exercising control in a managerial position. | ☐ | ☐ |
| Have you, your company or a person whose conduct is attributable to the company demonstrably committed a serious offence in the course of your professional activities that calls into question the integrity of the com- pany? A person's conduct is attributable to a company if that person acted as a person responsible for the management of the company; this also includes supervising the management or otherwise exercising control in a manage- rial position. Serious misconduct can include, for example, non-compliance with collec- tive agreements, violation of competition rules or intellectual property rights. | ☐ | ☐ |
| Have you or your company entered into agreements with another person or company or coordinated conduct with the aim of preventing, restricting or distorting competition? | ☐ | ☐ |
| Were you or your company involved in the preparation of the procurement procedure? | ☐ | ☐ |
| Have you or your company significantly or persistently failed to meet a key requirement in the performance of a previous public contract or conces- sion contract, resulting in premature termination, damages or a compa- rable legal consequence? | ☐ | ☐ |
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If you answered ‘Yes’ to one or more questions, please explain the circumstances in detail and state whether and, if so, what self-cleaning measures within the meaning of Section 125 (1) GWB you have implemented. Please explain this in a separate attachment to this declaration.
1.4 Note (cf. Section 126 GWB)
If a company for which there are grounds for exclusion has not taken any or sufficient self- cleaning measures in accordance with Section 125 GWB, it may, pursuant to Section 126 GWB
— be excluded from participating in procurement procedures for a maximum of five years from the date of the final conviction if there is a reason for exclusion under Section 123 GWB,
— be excluded from participating in procurement procedures for a maximum of three years from the date of the relevant event if there is a reason for exclusion under Section 124 GWB.
1.5 CONFIRMATION OF THE ACCURACY OF THE INFORMATION
In this section, you must confirm the accuracy of your information.
Important note: In addition to you as the bidder, every third party involved in the transfer of suitability or subcontracting and every member of a bidding consortium must complete and submit this form as a separate declaration.
I hereby confirm the accuracy of the information provided in sections 1.1 to 1.3.
The declaration is deemed to have been signed when it is submitted electronically via the federal government's e-procurement platform.
Date First name and surname of the person responsible for making the declaration
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2 Self-declaration on sanctions against Russia
Regulation (EU) 833/2014, as last amended by Regulation (EU) 2022/576 of the European Coun- cil of 8 April 2022, imposed extensive sanctions against the Russian Federation. These also apply to the award of public contracts. To prove that you are not subject to any grounds for exclusion, you are required to submit the following self-declaration.
Pursuant to Section 124(1)(8) of the German Act against Restraints of Competition (GWB), you may be excluded from participating in the procurement procedure if you commit serious de- ception, withhold information or are unable to provide the necessary evidence in relation to the grounds for exclusion listed here.
2.1 Persons, organisations or institutions ☐ I declare that I/we do not belong to any of the following persons, organisations or insti- tutions:
a) Russian nationals or natural or legal persons, organisations or institutions establis- hed in Russia,
b) Legal entities, organisations or institutions whose shares are held directly or indi- rectly by more than 50% by one of the organisations listed under letter a), or
c) Natural persons or legal entities, organisations or institutions acting on behalf of or on the instructions of one of the organisations listed under letter a) or b).
2.2 Subcontracts, suppliers and borrowing of qualifications
☐ I declare that no third party within the meaning of No. 2.1 is involved in the contract as a subcontractor, for delivery services or as a third party whose capacities are used within the meaning of the guidelines on public procurement (borrowing of qualifications).
If one of the grounds for exclusion referred to in 2.1 or 2.2 applies to you, please explain in a separate attachment prepared by yourself whether and why, in your opinion, the award or con- tinuation of the performance of the contract is necessary and possible under the conditions of Article 5k(2) of Regulation (EU) 833/2014. The wording of Article 5k(2) of Regulation (EU) 833/2014 can be found below (3.2).
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2.3 CONFIRMATION OF THE ACCURACY OF THE INFORMATION
In this section, you must confirm the accuracy of your information.
Important note: In addition to you as the bidder, every third party involved in the transfer of suitability or subcontracting and every member of a bidding consortium must complete and submit this form as a separate declaration.
I hereby confirm the accuracy of the information you have provided in sections 2.1 and 2.2.
By submitting the declaration electronically via the federal e-procurement platform, it is considered signed.
Date First and last name of the responsible person making the dec- laration
The excerpts with the wording of the law can be found in the appendix on the following pa- ges.
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3 Attachments
3.1 § 123 GWB
„(1) Public contracting authorities shall exclude an undertaking from participation at any point in the procurement procedure when they are aware that a person whose conduct is imputable to the undertaking in accordance with subsection (3) has been convicted by final judgement or a final administrative fine has been issued against the undertaking under Section 30 of the Ger- man Administrative Offences Act [Gesetz über Ordnungswidrigkeiten] for a criminal offence un- der:
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Section 129 of the German Criminal Code [Strafgesetzbuch] (forming criminal organisati- ons), Section 129a of the German Criminal Code (forming terrorist organisations) or Section 129b of the German Criminal Code (foreign criminal and terrorist organisations),
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Section 89c of the German Criminal Code (financing of terrorism) or for participation in such a crime or for the provision or collection of financial resources with the knowledge that such financial resources will be used or are intended to be used, wholly or in part, to commit a crime under Section 89a(2) no 2 of the German Criminal Code,
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Section 261 of the German Criminal Code (money laundering),
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Section 263 of the German Criminal Code (fraud), provided that the criminal offence is di- rected against the budget of the European Union or against budgets administered by the European Union or on its behalf,
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Section 264 of the German Criminal Code (subsidy fraud), provided that the criminal offence is directed against the budget of the European Union or against budgets administered by the European Union or on its behalf,
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Section 299 of the German Criminal Code (taking and giving bribes in commercial practice), Sections 299a and 299b of the German Criminal Code (taking and giving bribes in the health sector),
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Section 108e of the German Criminal Code (taking of bribes by and giving of bribes to elec- ted officials),
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Sections 333 and 334 of the German Criminal Code (granting benefits and giving bribes), each also in conjunction with Section 335a of the German Criminal Code (foreign and inter- national officials),
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Article 2 Section 2 of the German Act on Combating International Bribery [Gesetz zur Be- kämpfung internationaler Bestechung] (Bribery of Foreign Public Officials in International Business Transactions) or
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Sections 232, 232a (1) to (5), Sections 232b to 233a of the German Criminal Core (human trafficking, forced prostitution, forced labour, exploitation of labour, exploitation involving deprivation of liberty).
(2) A conviction or the issuance of an administrative fine under the comparable provisions of other countries are the equivalent of a conviction or the issuance of an administrative fine within the meaning of subsection (1).
(3) The conduct of a person convicted by final judgement shall be imputable to an undertaking if that person has acted as the person responsible for the management of the undertaking; this
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also includes supervision of management or the exercise of control in another manner in a ma- nagerial position.
(4) Public contracting authorities shall at any point in the procurement procedure exclude an undertaking from participating in the procurement procedure if
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the undertaking has not fulfilled its obligations relating to the payment of taxes, charges or social security contributions and this has been established by a judicial or administrative decision having final and binding effect or
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the public contracting authorities can prove the breach of an obligation under no 1 in another suitable manner.
Sentence 1 shall not apply if the undertaking has fulfilled its obligations by making the payment or committing to pay the taxes, charges and social security contributions, including interest, fines for late payment and penalties.
(5) An exclusion under subsection (1) may be disregarded if this is imperative for compelling reasons of public interest. An exclusion under subsection (4) sentence 1 may be disregarded if this is imperative for compelling reasons of public interest or if an exclusion would be obviously disproportionate. Section 125 shall remain unaffected.“
3.2 Article 5k Council Regulation (EU) 2022/576
„(1) It shall be prohibited to award or continue the execution of any public or concession contract falling within the scope of the public procurement Directives, as well as Article 10, paragraphs 1, 3, 6(a) to 6(e), 8, 9 and 10, Articles 11, 12, 13 and 14 of Directive 2014/23/EU, Article 7 and 8, Article 10 (b) to (f) and (h) to (j) of Directive 2014/24/EU, Article 18, Article 21 (b) to (e) and (g) to (i), Articles 29 and 30 of Directive 2014/25/EU and Article 13 (a) to (d), (f) to (h) and (j) of Directive 2009/81/EC, to or with:
a) a Russian national, or a natural or legal person, entity or body established in Russia,
b) a legal person, entity or body whose proprietary rights are directly or indirectly owned for more than 50 % by an entity referred to in point (a) of this paragraph, or
c) a natural or legal person, entity or body acting on behalf or at the direction of an entity referred to in point (a) or (b) of this paragraph,
including, where they account for more than 10 % of the contract value, subcontractors, supp- liers or entities whose capacities are being relied on within the meaning of the public procure- ment Directives.
(2) By way of derogation from paragraph 1, the competent authorities may authorise the award and continued execution of contracts intended for
a) the operation, maintenance, decommissioning and radioactive waste management, fuel supply and retreatment and safety of civil nuclear capabilities, and the continuation of de- sign, construction and commissioning required for the completion of civil nuclear facilities, as well as the supply of precursor material for the production of medical radioisotopes and similar medical applications, critical technology for environmental radiation monitoring, as well as civil nuclear cooperation, in particular in the field of research and development,
b) intergovernmental cooperation in space programmes,
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c) the provision of strictly necessary goods or services which can only be provided, or which can only be provided in sufficient quantities, by the persons referred to in paragraph 1,
d) the functioning of diplomatic and consular representations of the Union and of the Mem- ber States in Russia, including delegations, embassies and missions, or international organi- sations in Russia enjoying immunities in accordance with international law.
e) the purchase, import or transport of natural gas and oil, including refined petroleum pro- ducts, as well as titanium, aluminium, copper, nickel, palladium and iron ore from or through Russia into the Union, or
f) the purchase, import or transport into the Union of coal and other solid fossil fuels, as listed in Annex XXII until 10 August 2022.
(3) The Member State concerned shall inform the other Member States and the Commission of any authorisations granted under this Article within two weeks of the authorisation.
(4) The prohibitions in paragraph 1 shall not apply to the execution until 10 October 2022 of contracts concluded before 9 April 2022.“
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