Amendments to the German Concession Contracts Award Regulation and the German Regulation on the Award of Public Contracts in the Defence and Security Sectors ‒ Bill to speed up public procurement ‒ Noerr Insight No 4

The draft of an act to speed up public procurement (Vergabebeschleunigungsgesetz) (hereinafter referred to as the “Bill”) is intended to constitute a major step towards adapting public procurement processes to the current needs of business and society. Within the framework of a series of news articles, the most important aspects of the Bill and the planned amendments to procurement law are explained in detail.

The first part of this series outlined the political background and the overarching objectives of the Bill and provided an overview of the main changes to legal protection in procurement matters. It was pointed out already then that the planned reform intervenes deeply in existing structures with the aim of making public procurement more efficient, digital and innovation-friendly.

The second part of this series examined the planned amendments to the German Act against Restraints of Competition ‒ ARC (Gesetz gegen Wettbewerbsbeschränkungen ‒ GWB) with regard to the organisation of procurement procedures. These resulted in far-reaching flexibilities and measures aimed at making public procurement more efficient, digital and innovation-friendly.

In the third part of this series, we outlined the proposed changes to the Public Procurement Regulation (Vergabeverordnung ‒ VgV), which are intended primarily to promote young companies and SMEs, strengthen innovation and speed up procurement procedures.

The fourth part of this series discusses the future amendments to the German Concession Contracts Award Regulation (Konzessionsvergabeverordnung ‒ KonzVgV) (hereinafter referred to as the Concession Procurement Regulation) (see A.) and the German Regulation on the Award of Public Contracts in the Defence and Security Sectors (Vergabeverordnung Verteidigung und Sicherheit ‒ VSVgV) (hereinafter referred to as the “Defence and Security Procurement Regulation”) (see B.) and provides an outlook on the further process and the potential benefits of these innovations for economic operators and public contracting authorities (see C.).

A. Amendments to the Concession Procurement Regulation

The amendments to the Concession Procurement Regulation relate principally to reducing documentation requirements (see I.), supporting young companies and SMEs (see II.) and strengthening the principle of self-declaration (see III.).

I. Reducing documentation obligations

In the area of concession contract award law, the Bill primarily envisages a significant reduction of the documentation obligations as set out in section 6 of the Concession Procurement Regulation. The detailed specification of documentation contents, currently provided for in section 6(2) of the Concession Procurement Regulation, is to be removed. Instead, the planned section 6(1) (2^nd sentence) of the Concession Procurement Regulation will introduce an obligation to prepare a coherent contract award note.

According to the explanatory memorandum, documentation obligations are to be reduced for the sake of simplification compared to the more extensive obligations contained in section 8 of the Public Procurement Regulation because the Award of Concession Contracts Directive 2014/23/EU does not contain any minimum requirements for the documentation of award procedures (see explanatory memorandum, page 99). While this eases the burden for contracting authorities when documenting procurement procedures, reducing documentation requirements for economic operators will result in a gradual diminution of their protection. Documentation therefore plays a crucial role in review procedures and ensures contract awards are transparent and verifiable as access to the documentation must also be granted during file inspection in accordance with section 165(1) of the Act against Restraints of Competition.

II. Support for young companies and SMEs

Section 25(2) of the Concession Procurement Regulation, which governs the requirements for selecting suitable companies, is to be supplemented to provide that contracting authorities must appropriately take into account the special circumstances faced by young companies and small and medium-sized enterprises when determining selection criteria and evidence of suitability. However, they do not have to provide a justification for taking these circumstances into consideration.

The changes in section 25(2) of the Concession Procurement Regulation correspond to the planned section 42(2) of the Public Procurement Regulation (see also A. of our Noerr Insights of 13 August 2025). The purpose is to ensure that the special circumstances of young enterprises and SMEs, which can potentially disadvantage them in procurement procedures, are duly considered by contracting authorities when determining selection criteria and evidence of suitability. This is intended to reduce disadvantages and bureaucratic barriers for such companies, enhance their opportunities to participate in public contracts, and thereby strengthen competition in procurement procedures (see explanatory memorandum, pages 91 and 99).

III. Strengthening of self-declarations

The planned revision of section 26(1) of the Concession Procurement Regulation is intended to clarify that the principle of self-declaration, as set out in section 122 of the Act against Restraints of Competition, also applies to the award of concession contracts. Furthermore, the proposed section 26(4) of the Concession Procurement Regulation will incorporate the provisions of the planned section 45(4) of the Public Procurement Regulation (introduced by the Procurement Acceleration Act) into the Concession Procurement Regulation. According to this, a candidate or tenderer who, for a justified reason, is unable to submit the required documents may demonstrate their economic and financial capacity by providing other documents considered appropriate by the contracting authority. A justified reason may exist especially in those cases where the candidate or tenderer is a young company.

The aim is to allow companies which cannot provide the specific evidence of economic and financial capacity requested by the concession-granting authority to submit alternative evidence (see explanatory memorandum, page 100).

B. Amendments to the Defence and Security Procurement Regulation

The Bill also provides for various amendments to the Defence and Security Procurement Regulation (Vergabebeschleunigungsgesetz – VSVgV). These amendments are primarily intended to integrate and align provisions from the Act against Restraints of Competition, the Public Procurement Regulation and the German Federal Armed Forces Procurement Acceleration Act (Bundeswehrbeschaffungsbeschleunigungsgesetz ‒ BwBBG) with the Defence and Security Procurement Regulation. At the same time, the fundamental principles of the procurement process are to be restated (see also our Noerr Insight of 25 July 2025).

I. Application of the Defence and Security Procurement Regulation to planning services as a lot within a construction contract

Where, as part of a combined contract (lot), planning services are awarded as part of a construction contract, the current legal framework makes such awards subject to the German Regulation on Awards of Public Construction Contracts (Vergabe- und Vertragsordnung für Bauleistungen). The revised version of section 2(2) of the Defence and Security Procurement Regulation stipulates that planning services that are awarded as a separate lot within a construction contract will in future have to be tendered in accordance with the provisions of the Regulation.

II. Transfer of requirements from the Federal Armed Forces Procurement Acceleration Act

The proposed section 9 of the Defence and Security Procurement Regulation will permanently incorporate the security requirements set out in the Federal Armed Forces Procurement Acceleration Act into the Defence and Security Procurement Regulation. Under section 9(1) (3^rd sentence) of the Defence and Security Procurement Regulation, contracting authorities may require tenderers to ensure that they do not propose any subcontractors in their tenders who are established in a state outside the European Union if such state does not provide sufficient guarantees for safeguarding the security interests of the Federal Republic of Germany. Similarly, as set out in section 9(2) (3^rd sentence) of the Public Procurement Regulation, contracting authorities may stipulate that the contractor must not engage any subcontractors established in a state outside the European Union that does not provide the requisite safeguards for the security interests of Germany.

III. Principles of the award procedure

The most extensive changes to the Defence and Security Procurement Regulation are planned for the principles of the award procedure in section 10. The current section 10(1) is to be repealed as the planned revision of section 97(4) of the Act against Restraints of Competition renders the current provision for considering the interests of medium-sized companies obsolete.

Modelled on section 28(2) of the Public Procurement Regulation, the new section 10(3) (2^nd sentence) will clarify that contracting authorities may also conduct market consultations in the defence and security sectors to prepare procurement procedures. However, there is expressly no mandatory obligation to do so, unlike, for example, section 3(7) of the Federal Armed Forces Procurement Acceleration Act for certain requirements. The planned section 10(5) of the Defence and Security Procurement Regulation implements Directive 2009/81/EC. Accordingly, contracting authorities may use central purchasing bodies or act as such themselves. The second sentence sets out a presumption rule: if the central purchasing body complies with public procurement requirements, it is presumed that the contracting authority also fulfils these requirements. The third sentence clarifies that this also applies if the central purchasing body is not itself a contracting authority or is not governed by German procurement law. In such cases, however, the relevant provisions of the EU Directive must be observed and effective legal remedies must be available.

IV. Indicating deadlines for submitting suitability and exclusion documents

As is also proposed for the Public Procurement Regulation in section 48(1) (see our Noerr Insight of 13 August 2025 under C.), contracting authorities will in future be required under the Defence and Security Procurement Regulation to clearly state in the contract notice when and which documents must be submitted. This requirement applies both to demonstrating suitability and to confirming the absence of grounds for exclusion. This is intended to ensure transparency for candidates or tenderers as to precisely which documents must be provided at which stage of the procedure. The requirement also applies to documents that are to be submitted only at a later stage by shortlisted candidates or tenderers; these must be clearly identified in the contract notice so that any interested undertaking can make necessary preparations in anticipation of a future request (see explanatory memorandum, pages 94 and 102).

V. Requesting documents

The revision of section 22(7) of the Defence and Security Procurement Regulation is intended to align the process for requesting additional documents with the wording of the planned section 56(2) of the Public Procurement Regulation under the Procurement Acceleration Act. Accordingly, the contracting authority may, in compliance with the principles of transparency and equal treatment, request candidates or tenderers to supplement, clarify, complete, or correct incomplete or erroneous declarations or documents used to prove suitability and the absence of exclusion grounds. The previous provision in section 22(6) (2^nd sentence) of the Defence and Security Procurement Regulation, which required the exclusion of candidates or tenderers who failed to submit the requested evidence and documents within a deadline set by the authority, has not been retained in the new section 22(7).

The revised section 31(2) of the Defence and Security Procurement Regulation will also permit subsequent requests for documents in future. Under section 31(2), the contracting authority may, again in line with transparency and equal treatment, request candidates or tenderers to provide missing documents or to supplement, clarify, complete, or correct incomplete or erroneous documents within their tender. According to the explanatory memorandum, which expressly refers to the revised section 22(7), this adjustment aims to avoid excluding companies from procurement procedures due to formal defects in their submissions, thereby ensuring a sufficient number of bids for effective competition (see explanatory memorandum, page 103).

As already outlined in our Noerr Insight of 13 August 2025 under D, the problems relating to extending the grounds for exclusion to cases where a party fails to provide an explanation also arise here. Until now, the Defence and Security Procurement Regulation has not provided for requests for clarification pursuant to section 48(7) of the Public Procurement Regulation, which applies only to submitted and not to incomplete or missing documents. According to the future section 31(3)(1) of the Defence and Security Procurement Regulation, however, any tender that does not contain the required or requested declarations and evidence will be excluded. It is therefore to be hoped that the legislature will revise and clarify the Bill at this point.

VI. Flexibility in providing evidence

The new section 26(2) of the Defence and Security Procurement Regulation allows the contracting authority to accept any other suitable evidence where candidates or tenderers are unable to submit the required evidence of economic and financial standing for a justified reason. A legitimate reason may also exist in particular in cases where the candidate or tenderer is a young company. This provision, which is especially for the benefit of young companies, aligns with the planned changes in section 26(4) of the Concession Procurement Regulation (see under A, III. above) and section 45(4) of the Public Procurement Regulation (see under A. of our Noerr Insight of 13 August 2025).

C. Conclusion and outlook

The planned changes to the Concession Procurement Regulation and the Defence and Security Procurement Regulation will give contracting authorities much greater flexibility and simplicity in procurement procedures, and will further harmonise the different procurement law regimes. However, for interested companies, the restriction of documentation requirements in the area of concession awards should be viewed critically. This is because reducing documentation can negatively affect transparency and equal treatment, especially regarding legal protection in procurement matters. Documentation is specifically intended to allow companies, through access to the files under section 165(1) of the Act against Restraints of Competition, to transparently verify that the procurement procedure has been conducted in compliance with procurement law. In the event of violations of subjective rights under section 97(6) of the Act, this documentation also enables companies to prove such breaches using the award file.

Both the amendments to the Concession Procurement Regulation and the Defence and Security Procurement Regulation promote young and innovative companies and SMEs. It is precisely this that will enable “newcomers” and innovative start-ups to attract the attention of public-sector clients and, aided by the simplifications included in both regulations, they will have better chances of being awarded contracts.

It is still unclear whether, during the parliamentary process, lawmakers will make a legally sound adjustment to the Defence and Security Procurement Regulation regarding the distinction between explaining documents under the planned sections 22(7) and 31(2), and the grounds for exclusion under the new section 31(3)(1). Consistent handling of this distinction is especially important, as the Defence and Security Procurement Regulation does not currently allow for requests to explain documents in the same way as section 48(7) of the Public Procurement Regulation.

The fifth part of this series of articles will analyse in more detail the changes to the German Sector Regulation (Sektorenverordnung) provided for in the Procurement Acceleration Act.