Public contract

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Public contracts are contracts that public clients award to the private sector .

Legal bases

Within the EU , public contracts worth 1.6 trillion euros are awarded. This corresponds to around 12–15 percent of the gross national income in the EU. Due to the buying power of the public clients in many sectors, the legislature has made the award of public contracts subject to special procurement law .

In Germany, the concept of the public contract is legally defined in Section 103 of the Act against Restraints of Competition (GWB) .

Public contracts are therefore essentially contracts for delivery, construction or services or tendering procedures for a fee:

  1. Public contracts are paid contracts between public clients and companies that have delivery, construction or services as their object, and tender procedures that are intended to lead to service contracts.
  2. Delivery orders are contracts for the procurement of goods that relate in particular to purchase or hire purchase or leasing, rental or leasing with or without a purchase option. The contracts can also include fringe benefits.
  3. Construction contracts are contracts either for the execution or the simultaneous planning and execution of a building project or a structure that is the result of civil engineering or building construction and is intended to fulfill an economic or technical function, or a construction work by third parties according to the requirements specified by the client.
  4. The contracts for services that do not fall under Paragraph 2 or 3 and are not tendering procedures are deemed to be service contracts.
  5. Award procedures in the sense of this part are only those award procedures that are intended to help the client to come up with a plan on the basis of a comparative assessment by a jury with or without the distribution of prizes.
  6. A public contract that has as its object both the purchase of goods and the procurement of services is considered a service contract if the value of the services exceeds the value of the goods. A public contract which, in addition to services, includes construction work that is ancillary work in relation to the main object is considered a service contract.

Delimitations

This legal definition opens up the scope of public procurement law. A prerequisite for a public contract is therefore a contract , so that services that have their legal basis in laws or ordinances do not constitute a public contract. If a contract is subject to public law , it is not deprived of its public mandate. Therefore, the legal definition of Section 99 (1) GWB also includes the public law contract . Only if the contract under public law includes the exercise of sovereign authority , there is no public contract. The public contract is also characterized by remuneration. Remuneration is any type of remuneration that can have a monetary value. Since market services are procured, the purpose of the procurement is an essential element of the public contract. Public contracts also do not include tasks that the public sector carries out on its own (so-called in-house awards ).

See also

Individual evidence

  1. ↑ Angela Dagerförde, Introduction to Procurement Law , 2013, p. 4 ff.
  2. ↑ ECJ, judgment of 12 July 2001, ref .: Rs. 399 C / 98- La Scala
  3. ^ Administrative Chamber of Hesse, decision of March 5, 2008, Az .: 69d-VK-06/2008