What is a Contracting Authority?
In German procurement law, the contracting authority (Auftraggeber) is the public entity responsible for initiating and conducting a procurement procedure. Under Section 99 of the German Act Against Restraints of Competition (GWB), contracting authorities include federal, state, and municipal bodies, their special funds, as well as other legal persons under public or private law that were established for the specific purpose of meeting needs in the general interest (not of an industrial or commercial nature) and that are predominantly publicly financed or controlled.
Beyond classic public contracting authorities, German procurement law also recognizes sector contracting authorities (Sektorenauftraggeber) under Section 100 GWB, which operate in the fields of water, energy, transport, and telecommunications, as well as concession grantors. Each of these categories is subject to specific procurement rules laid down in separate regulations: the VgV for general public procurement, the SektVO for utilities, and the KonzVgV for concessions. The contracting authority bears full responsibility for the lawful conduct of the entire procurement procedure, from needs assessment through preparation of tender documents to contract award and documentation.
A fundamental principle is that the contracting authority must uphold transparency, equal treatment, and competition. It is obligated to structure the procurement in a manner that enables fair competition and prevents discrimination against individual bidders. The procurement office (Vergabestelle) typically serves as the operational unit executing the procedure on behalf of the contracting authority.
Why It Matters for Bidders
For companies participating in public tenders, correctly identifying the type of contracting authority is essential. The classification determines which procurement rules apply and which legal remedies are available in case of disputes. For public contracting authorities above the EU thresholds, the strict GWB procurement regime applies, including the right to lodge a review before the Procurement Review Board (Vergabekammer).
Bidders should also verify whether the contracting authority uses central purchasing bodies, as this can affect the tendering process and the structure of the tender documents. Identifying the responsible contracting authority is also critical for communication during the procedure, such as submitting bidder questions or providing evidence of suitability.
Legal Framework
The definition and classification of contracting authority types are set out in Sections 98 to 101 GWB. The Procurement Regulation (VgV), Utilities Sector Regulation (SektVO), Concession Award Regulation (KonzVgV), and Below-Threshold Procurement Rules (UVgO) further specify procedural obligations. At the European level, EU Procurement Directives 2014/24/EU and 2014/25/EU form the legislative foundation.