Skip to main content
SpringerLink
Log in

The German Procurement System – A Successful Battle Against Corruption

  • Chapter
  • First Online:
Using Transparency Against Corruption in Public Procurement

Part of the book series: Studies in European Economic Law and Regulation ((SEELR,volume 11))

  • 823 Accesses

Abstract

So far, our attention has focused mainly on the legislation of a Member State which has proved inefficient in its pursuit of a working tool to combat corruption in the public procurement process. This chapter marks the beginning of the section dedicated to benchmarking this failure with the experience of other countries in the same field. It is especially focused on Germany and highlights which of its practices might be suitable for Member States with problems similar to Bulgaria’s. At the same time, it also comments on practices which are reliable in Germany and which are even transposed into EU legislation, but which are somehow inapplicable to Member States with different socioeconomic conditions and development levels.

‘She, not even as large, all in all, as an egg hitherto,

Envious, stretched, swelled, strained, in her zeal

To match the beast in overall size,

Saying, ‘Sister, lend me your eyes.

Is this enough? Am I not yet there, in every feature?”

(Jean de La Fontaine

‘The Frog Who Would Be as Big as an Ox’)

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 139.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 179.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 179.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    Bearing in mind the limitations of the CPI, as already discussed in Chap. 3 of this book.

  2. 2.

    Similar investigations have already been undertaken for Bulgaria, eg Manual of good practices in the public procurement field and concession appealing, (Sofia: Bulgarian Competition Protection Commission, 2009); K Pashev and K Marinov (eds), Reducing the risks of corruption and introducing good practices in public procurement management (Sofia: Governance Monitoring Association and Economic Policy Institute, 2009); K Pashev, ‘Reducing Corruption Risks and Practices in Public Procurement: Evidence from Bulgaria’ (2009) Paper presented at the First Global Dialogue on Ethical and Effective Governance Amsterdam, etc.

  3. 3.

    K Pashev and K Marinov (eds), Reducing the risks of corruption and introducing good practices in public procurement management (Sofia: Governance Monitoring Association and Economic Policy Institute, 2009; ch VI), 134.

  4. 4.

    The period of the restoration of the Bulgarian state after being part of the Ottoman Empire for five centuries is known as the ‘post-liberation period’. Historically this period runs from 1879 to 1920.

  5. 5.

    First developed in 1881, effective as of 1 January 1900.

  6. 6.

    Prof Lyuben Dikov (1895–1973), Dr Petar Dzhidrov (1876–1952), Prof Konstantin Katsarov (1898–1980), etc.

  7. 7.

    Transparency.org. (2015) <www.transparency.org/cpi2015> accessed 25 April 2016.

  8. 8.

    National Integrity System Report Germany 2012 (short version). (Berlin: Transparency International Deutschland, 2012) 19 et seq.

  9. 9.

    Commission (EU), ‘First EU Anti-Corruption Report’, Annex 5 – Germany; COM(2014) 38 final, 3.

  10. 10.

    L Hensgen, Fight against corruption in the Danube region: A study of regional best practices, (Max Plank Foundation for International Peace and the Rule of Law, Sankt Augustin: Konrad Adenauer Stiftung, 2013) 32.

  11. 11.

    Ibid – ‘More than 22,800 single corruption offences and bribery in the course of trade were registered in two large investigations alone, namely against employees of an automaker and against civilian employees of the British Army of the Rhine, as well as against their respective contractors’.

  12. 12.

    Korruption – Bundeslagebild 2012 (2012) Bka.de <www.bka.de/nn_193376/DE/Publikationen/JahresberichteUndLagebilder/Korruption/korruption__node.html?__nnn=true> accessed 25 April 2016, 3.

  13. 13.

    TheGlobalEconomy.com, ‘Compare countries, compare economies, compare indicators’ (2015) <www.theglobaleconomy.com/compare-countries/> accessed 25April 2016.

  14. 14.

    Again, as a matter of statistics, the fact that the public procurement sector in Germany forms around 17% of national GDP and thus has a serious impact on the economic welfare of the country should be noted. The annual volume of public procurement in Germany is huge. According to the Annual Procurement Review 2011 of the European Bank for Reconstruction and Development (p 14 and Annex 3) the awards made by country of origin of the tenderers, presented by contract type for 2011 for Germany are as follows (i) work contracts – EUR 9,800,809; (ii) supply and installation contracts – EUR 2,202,692; (iii) goods – EUR 201,337; and (iv) consultancy services – EUR 59,430. The total value of procurement contracts for Germany in 2011 is EUR 12,264,268.

  15. 15.

    Also considering the fact that a major part of the EU procurement legislation is strongly influenced by the German legislation itself. Therefore, some procurement package parameters which are new to other Member States are well known and used in practice in Germany.

  16. 16.

    In choosing to consider Germany, it is impossible to ignore the work of CPCCOC and the BORKOR Project, discussed in Chap. 4, in the field of reducing corruption in the award of public procurement contracts in Bulgaria. In the formulation of its anti-corruption methodology and the elaboration of a model to counter corruption in the public procurement field, the CPCCOC has endorsed the German model – similar to one of the German online platforms (the ‘V-Model’) for the detection of corruption gateways and related to certain elements of German legislation.

  17. 17.

    Above (n 8); National Integrity System Assessment – Bulgaria Country Report 2011 (Sofia: Transparency International Bulgaria, 2011).

  18. 18.

    TheGlobalEconomy.com, ‘Compare countries, compare economies, compare indicators’ (2015) <www.theglobaleconomy.com/compare-countries> accessed 25 April 2016.

  19. 19.

    18 March 2016.

  20. 20.

    BGBl. I S. 203/23.2.2016, Federal Gazette I 26 August 1998, p. 2546, as amended.

  21. 21.

    BGBl. I S. 321/22.2.1994, as amended.

  22. 22.

    BGBl. I S. 3110/23.9.2009, as amended.

  23. 23.

    The Procurement Regulation for Public Works (Vergabe- und Vertragsordnung für Bauleistungen, VOB/A) has now shortened, with most of its provisions being shifted to the GWB and VgV; the Procurement Regulation for Public Supplies and Services (Vergabe- und Vertragsordnung für Leistungen, VOL/A) and the Procurement Regulations for the Award of Independent Contractor Services (Verdingungsordnung für freiberufliche Leistungen, VOF) have been repealed and their provisions are now incorporated in the GWB and VgV.

  24. 24.

    F Raddatz, ‘Modernisation of public procurement law – will this impact the healthcare industry?’ (2015) Noerr.com <www.noerr.com/en/press-publications/News/modernisation-of-public-procurement-law.aspx> accessed on 25 April 2016.

  25. 25.

    The budgetary laws of the federal, state and local governments, as well as the relevant part of the VOB/A are, however, mandatory.

  26. 26.

    The rules for the award of concessions (Verordnung über die Vergabe von Konzessionen) and the public procurement regulation on defence and security (ie Vergabeveroednung Verteidigung und Sicherheit) will remain beyond the scope of this work, with the exception of some sporadic references aiming to highlight the general rule.

  27. 27.

    M Burgi, ‘Public Procurement Law in the Federal Republic of Germany: Annual Report’ IUS Publicum <www.ius-publicum.com/repository/uploads/09_02_2012_9_43_Burgi.pdf> accessed 25 April 2016, 5.

  28. 28.

    The fundamental procurement principles are enshrined in §97 GWB (VergRModG).

  29. 29.

    §122(1) GWB (VergRModG).

  30. 30.

    Aside from the primary legal protection system for above-thresholds awards, enforceable protection can also be provided by §19 and §20 GWB and the Act Against Unfair Competition (Gesetz gegen unlauteren Wettbewerb, Federal Gazette 3 March 2010, as amended), which are applicable in the case of abuse of a dominant position or unfair commercial practices (such as bid rigging) under the German Civil jurisdiction. Finally, Art 3 of the German Basic Law (Grundgesetz, Federal Gazette 23 May 1949, as amended) must also be observed, according to which every bidder must be treated equally by the executive branch to which awarding agencies generally belong.

  31. 31.

    The mandatory/preferable splitting of public procurements into lots with the purpose of awarding each lot to a different SME, as per §97(3) GWB (now §97(4) GWB (VergRModG)), fully corresponds with Art 46 Directive 24/2014/EU.

  32. 32.

    For example, www.bund.de – the Federal Government’s tender platform – e-Allocation, e-Vergabe and others.

  33. 33.

    In this sense see also ‘Public procurement in Germany: overview, Country Q&A’ (2013) Us.practicallaw.com <http://us.practicallaw.com/8-521-5162> accessed 25 April 2016.

  34. 34.

    §97(1) first sentence GWB (VergRModG).

  35. 35.

    In accordance with §113 GWB (VergRModG).

  36. 36.

    §37(1) VgV (as amended by the VergRModVo).

  37. 37.

    §40 (extracts) VgV (as amended by the VergRModVo).

  38. 38.

    §37(4) VgV (as amended by the VergRModVo).

  39. 39.

    J Olaya, ‘Case study: the implementation of an Integrity Pact in the Berlin Schönefeld Airport Project’ (Transparency International, 2010).

  40. 40.

    And especially in view of the cultural and historical grounds for corruption in Bulgaria, as explored in the first chapters.

  41. 41.

    See §101(7) GWB.

  42. 42.

    §119(2) GWB (VergRModG). By way of exception, an awarding authority subject to the SektVO (§13(2)) can choose freely between the open procedure, the restricted procedure, the negotiated procedure with a call for competition and the competitive dialogue.

  43. 43.

    J Ellison and L Baudrihaye (eds) International Comparative Legal Guides to Public Procurement 2014 (London: Global Legal Group Ltd, 2013) ch 10, 70 et seq.

  44. 44.

    See above (n 27) 6.

  45. 45.

    eg A Hantschel and A Schlange-Schöningen, ‘Public Contracts in Germany’ (2010) Executive Agency for Competitiveness and Innovation (Leaflet) <www.een-ireland.ie/eei/assets/documents/uploaded/general/Public%20Contracts%20in%20Germany.pdf> accessed 25 April 2016.

  46. 46.

    RIBA, ‘Comparative Procurement: Procurement regulation and practice in Germany, Sweden and the UK’ (2012) Report prepared by contributors from Burges Salmon LLP <www.architecture.com/Files/RIBAHoldings/PolicyAndInternationalRelations/Policy/PublicAffairs/2012/ComparativeProcurement.pdf> accessed 25 April 2016, 6.

  47. 47.

    Art 67(2) last paragraph Directive 2014/24/EU.

  48. 48.

    See above (n 43).

  49. 49.

    Below the EU thresholds, the system of protection for bidders is significantly weaker. Bidders are generally restricted to administrative complaints, where the remedies are limited to compensation for damages (if a legal provision was not complied with in the award procedure and the procurement contract was not awarded to the claimant).

  50. 50.

    The awards chamber of the Federal Government at the Federal Cartel Office reviews public contracts awarded by the Federal Government, while the awards chambers of the separate Bundesländer have jurisdiction over the contracts attributable to the individual states.

  51. 51.

    §60(3)(4) GWB (VergRModG) (the ‘unverzügliche Rüge’).

  52. 52.

    Art 121(8) PPA: ‘The contracting authority may eliminate the violation until receiving the notification […] for completed investigations under the appeal by the Commission for Protection of Competition’.

  53. 53.

    §160 GWB (VergRModG).

  54. 54.

    §169(1) GWB (VergRModG).

  55. 55.

    For example, §169(2) GWB (VergRModG) states that: ‘The public procurement tribunal may allow the contracting entity […] to award the contract after the expiry of two weeks after the announcement of this decision if, taking into account all interests which may be impaired as well as the interests of the general public in the quick conclusion of the award procedure, the negative consequences of delaying the award until the end of the review outweigh the advantages involved. In its assessment, the public procurement tribunal shall take account of the interests of the general public that the contracting entity carries out its tasks efficiently. The public procurement tribunal shall also consider the overall prospects of the applicant to win the award in the award procedure. The prospects of success of the application for review need not be taken into account in every case’.

  56. 56.

    Art 1(5) Remedies Directive.

  57. 57.

    §160(3)(4) GWB (VergRModG).

  58. 58.

    §169(3) GWB (VergRModG).

  59. 59.

    See also ‘Report concerning the Study on Pre-Contract Problem-Solving Systems’ (Copenhagen: The Danish Competition Authority 2002).

  60. 60.

    §156(2) GWB (VergRModG).

  61. 61.

    Pursuant to the Obligations and Contracts Act, SG 2/5.12.1950, as amended, and the Commercial Act, SG 48/18.6.1991; effective as of 1 July 1991, as amended.

  62. 62.

    §135 GWB (VergRModG).

  63. 63.

    German law differentiates between ineffectiveness and annulment. The difference is mainly that ineffectiveness provides the option for remedying the defect and is also applicable from a certain point in time onwards. Applicable is also ineffectiveness ‘ex tunc’ or ‘ab initio’, which, in practice, coincides with the general concept of ‘annulment’ – there is no option for remedies and effect is retroactive. Quite separately, ineffectiveness can be regarded as one of the possible remedies set out in Art 2d Remedies Directive, which has been transposed into the GWB (VergRModG).

  64. 64.

    See above (n 43).

  65. 65.

    R Caranta, ‘The Comparatist’s Lens on Remedies in Public Procurement’ (2011) Istituto Universitario di Studi Europei ECLI Working Papers Series No 2011-1/2-ECLI <http://workingpapers.iuse.it/wp-content/uploads/2011/08/2011-02-ECLI.pdf> accessed 25 April 2016, 9.

  66. 66.

    Art 41b(1) PPA: ‘The following contracts or framework agreements shall be ineffective in respect of the persons covered under Art 122i, para 1, where concluded: 1. Without a public procurement award procedure despite the existence of grounds for conduct of such procedure; 2. Upon legally non-conforming application of the grounds of Art 4, Art 12(1), Art 90(1), Art 103(2) or Art 119c(3)’. The provisions listed cover cases where the contracts concluded fall beyond the scope of the Act: unlawful conduct of negotiated procedure without prior notification, etc.

  67. 67.

    Discussed in Chap. 5 as a common form of corruption aiming at the selection of a preferred candidate and elimination of the other participants in the procedure.

  68. 68.

    With the new rules provided by the GWB (VergRModG), there are now some exceptions where ineffectiveness does not occur, eg the contracting authority considers that the contract without prior publication of a contract notice in the OJEU is permitted and would not be declared ineffective; the contracting authority has published a notice in the OJEU, with which it expressed its intention to conclude the contract etc. However, the disciplining effect discussed above is not reduced, in contrast with the Bulgarian approach.

  69. 69.

    According to §173(1) GWB (VergRModG): ‘The suspensive effect shall lapse two weeks after the expiry of the time limit for the complaint’.

  70. 70.

    More general statistics indicate that around 17 percent of the applications before the public procurement tribunals were successful.

  71. 71.

    Civil Law Convention on Corruption (adopted 4 November 1999) CETS 174; and Criminal Law Convention on Corruption (adopted 27 January 1999) CETS 173.

  72. 72.

    ie The Council of Europe Civil Law Convention on Corruption was signed by Germany 1999; The Council of Europe Criminal Law Convention on Corruption was signed by Germany 1999, The Additional Protocol to the Criminal Law Convention on Corruption of the Council of Europe was signed by Germany 2003 CETS 191.

  73. 73.

    A Pulito, ‘Germany the anti-corruption laggard’ (2012) Academia.edu <www.academia.edu/2225981/Germany_the_anti-corruption_laggard> accessed 25 April 2016, 1.

  74. 74.

    Federal Gazette I, p. 945, p. 3322/13.11.1998, as amended.

  75. 75.

    Information taken from the official statistics of the German Federal Police Office (Bundescriminalamt) (2015) BKA Startseite <www.bka.de/DE/Home/homepage__node.html?__nnn=true> accessed 25 April 2016.

  76. 76.

    eg taking bribes (§331 StGB): ‘It is a criminal offence if a public official demands, allows himself to be promised or accepts a personal benefit for himself or on behalf of a third party for the discharge of an official duty. ‘Benefit’ would be any advantage to which the public official is not legally entitled and is not necessarily pecuniary in nature’.

    Taking bribes intended to encourage violation of official duties (§332 StGB): ‘It is the aggravated form of the offence in section 331 and requires the performance of an official act that violates an official duty’.

    Giving bribes (§333 and §334 StGB): ‘Under §333 and §334 of StGB, promising and giving bribes to public officials is a criminal offence. §334 additionally requires the performance of an official act that violates an official duty’.

  77. 77.

    Federal Gazette II 2327/1998, as amended.

  78. 78.

    Federal Gazette II, p. 2340; III, p. 18888/10.9.1998, as amended.

  79. 79.

    eg ‘Guidelines of the Federal Government on the Prevention of Corruption within the Federal Administration’ (Richtlinie der Bundesregierung zur Korruptionsprävention in der Bundesverwaltung) (2004) Bmi.bund.de <www.bmi.bund.de/SharedDocs/Downloads/DE/Themen/OED_Verwaltung/Korruption_Sponsoring/Richtlinie_zur_Korruptionspraevention_in_der_Bundesverwaltung.html> accessed 25 April 2016.

  80. 80.

    T M Funk, ‘Germany’s Foreign Anti-Corruption Efforts – Second-Tier No More’ (2014) 1 ZDAR 24. Funk also cites the OECD Working Group on Bribery.

  81. 81.

    Business-anti-corruption.com (2015) <www.business-anti-corruption.com/country-profiles/europe-central-asia/germany/initiatives/public-anti-corruption-initiatives.aspx> accessed 25 April 2016.

  82. 82.

    As evaluated by Transparency International in the German NIS Report 2012 (above (n 8) 35). The human and financial resources of this institution were found to be appropriate to their duties and its governance was assessed as excellent.

  83. 83.

    The structure of the Federal Court of Auditors, the appointment of its members and the procedures required for a decision to be reached are regulated by the Federal Audit Office Act (Bundesrechnungshofgesetz, Federal Gazette I, p. 160/5.2.2009, as amended) and supplementary provisions. The audit functions, objects, criteria and procedures are outlined in the Federal Budget Code (Bundeshaushaltsordnung, BGBl. I S. 1284/19.8.1969, as amended – BHO), the Budgeting Principles Act (Haushaltsgrundsätzegesetz, BGBl. I S. 1273/19.8.1969, as amended) and other specialised acts.

  84. 84.

    The Bulgarian NAO also has sanctioning functions as part of its competence, which recent years have occasionally been removed than restored by the legislator within endless amendments to the relevant legislation (see Chap. 4).

  85. 85.

    ‘Annual Report on Federal Financial Management 2013’ (Abridged English Version) <www.bundesrechnungshof.de/en/veroeffentlichungen/bemerkungen-jahresberichte-en/dateien/2013-annual-report> accessed 25 April 2016, 29.

  86. 86.

    §123 and §124 GWB (VergRModG).

  87. 87.

    The Federal Ministry of Environment, Nature Conservation, Building and Nuclear Safety introduced a new version of the guidelines for pre-qualification of contractors on 15 October 2015, which entered into force on 2 January 2016.

  88. 88.

    ie lists maintained by certification bodies established in public and/or private law.

  89. 89.

    In this sense see also C Sesterhenn, ‘Erfolg durch Präqualifikation in Deutschland und Europa?’ (2009) Seminar paper: 11th Interdisciplinary Conference of Construction Economics and Building Law in Hanover (Seminarunterlagen zur 11 Interdisziplinären Tagung für Baubetriebswirtschaft und Baurecht, Hannover) <www.semina.de/verlag/pdf/11_praequalifikation.pdf> accessed 25 April 2016, 72.

  90. 90.

    Ibid.

  91. 91.

    The next chapter will review the Austrian model which is not mandatory but also achieves positive results.

  92. 92.

    As envisaged in Art 57(6) Directive 24/2014/EU.

  93. 93.

    The relevant before provisions were §6a(1)(3) VOB/A, §6EC(5) VOL/A, §4(8) VOF and §21(2) SektVO. Now the self-cleaning mechanism is provided in §125 GWB (VergRModG).

  94. 94.

    Commission (EU) ‘Minutes of the Meeting of the Commission Stakeholder Expert Group on Public Procurement’ (2012) <http://ec.europa.eu/internal_market/publicprocurement/docs/expert-group/120925_minutes_en.pdf> accessed 25 April 2016, proposition of M Tanferma, 6.

  95. 95.

    Art 56(1)(3)New PPA.

  96. 96.

    There are additional comments on this point in the next chapter as well.

  97. 97.

    ie the BHO and the separate regional or state budget laws.

  98. 98.

    See above (n 43).

  99. 99.

    The principle of equal treatment could also imply a transparency obligation, following Case C-470/99 Universale-Bau AG, Bietergemeinschaft: (1) Hinteregger & Söhne Bauges.m.b.H. Salzburg, (2) Östü-Stettin Hoch- und Tiefbau GmbH v Entsorgungsbetriebe Simmering GmbH [2002] ECR I-11655.

  100. 100.

    Art 54 New PPA: ‘The contracting authority shall exclude from participation in a public procurement award procedure any candidate or tenderer who or which: 1. has been convicted by an enforceable sentence, unless rehabilitated, of: […]; (b) bribery under Art. 301 to 307 of the Criminal Code […]’.

  101. 101.

    Judgment of 15 March 2012 in Case C-574/10 Commission v Germany [2012] ECLI:EU:C:2012:145: In 2006 and 2007, the municipality of Niedernhausen appointed a local engineering company to renovate a hall. The renovation was to be conducted in a phases. The German authorities considered that the planning services for each phase constituted a separate services contract, the value of each contract falling below the financial thresholds. The ECJ alleged that Germany had artificially divided the contract in breach of public procurement rules: ‘An almost arbitrary division of the contracts is contrary to the effectiveness of the directive. It would indeed often lead to values artificially falling below the threshold and thereby to a reduction of its scope of application. The Court notes in its settled case-law the significance of the directive on the award of public contracts for the free movement of services and for fair competition at European Union level. An arbitrary and subjective ‘dismemberment’ of uniform service contracts would undermine that objective. Budgetary reasons for the division into construction sections could also not justify an artificial division of a unified contract value. It is contrary to the objective of the European public procurement directives for a unified proposed purchase which is carried out in several stages purely for budgetary reasons to be considered solely for that reason to consist of several independent contracts and thereby to be prevented from coming within the scope of application of the directive. Art 9(3) of the directive indeed forbids such an artificial division of a unified proposed purchase. It must be concluded that the contracts in question constitute a unified proposed purchase, the value of which at the time of the contract award exceeded the threshold laid down in the directive. The contract should therefore have been the subject of a Europe-wide invitation to tender and awarded according to the procedure provided for in the directive. That is not the case and therefore the defendant infringed Directive 2004/18/EC’.

  102. 102.

    An exception to this rule applies to negotiated procedures and the competitive dialog.

  103. 103.

    §132–133 GWB (VergRModG).

  104. 104.

    Case C-454/06 Pressetext Nachrichtenagentur GmbH v Republik Österreich (Bund), APA-OTS Originaltext-Service GmbH, APA Austria Presse Agentur registrierte Genossenschaft mit beschränkter Haftung [2008] ECR I-4401.

  105. 105.

    Art 116 New PPA.

  106. 106.

    See above (n 8).

  107. 107.

    bund.de is a partner of ‘Deutschland-Online’ – an e-government strategy which offers a secure gateway to the services and online information of the German federal administrations. Two years ago, the Ministry of the Interior started another government communication system – the so called De-Mail, which will enable and facilitate the exchange of electronic documents between citizens and public authorities over the internet. There also other initiatives aiming to digitalise the entire German administration.

  108. 108.

    In addition, the Federal Ministry for Economic Affairs and Energy intends also to establish a new database on public procurements to provide reliable statistical information on the size of procurement awards, the number of procedures etc in conformity with §114 GWB (VergRModG).

  109. 109.

    The latest development in this e-government strategy for the period 2014–2020 was the decision that Bulgaria needs to reach the average European level of e-government by 2020.

  110. 110.

    To date (and before the transposition of the new EU legislation), the main excuse offered by the Bulgarian state is the lack of financial resources for the realisation of the BORKOR project or of any other project (if any exists) aiming to achieve the transition to electronic procurement. In addition, any project, including the BORKOR project, sooner or later falls prey to political games, nepotism and changes in governmental, which have so far in practice crushed all attempts at the development of e-procurement.

  111. 111.

    The Act on Federal Civil Servants (Bundesbeamtengesetz) and the Act on the Status of Federal Civil Servants (Beamtenstatusgesetz).

  112. 112.

    A draft of a Whistleblower Protection Act is a priority for the Bundestag for 2016.

  113. 113.

    See above (n 10).

  114. 114.

    Ibid, 37.

  115. 115.

    ‘Policy document on Public Procurement and Anti-Corruption Strategies’ (Berlin: Transparency International Deutschland, 2011).

  116. 116.

    Motion for the third reading of the Federal Government Bill – Draft Law on the modernisation of public procurement law (Procurement Law Modernisation Act – VergRModG) (2015) German Bundestag.

  117. 117.

    Germany is among the few Member States which publish comprehensive statistics on cases reported to the police and criminal investigations launched. In 2011 the Federal Criminal Police recorded 46,795 corruption reports to the police, and 1,528 ongoing investigations.

  118. 118.

    The Bulgarian BORKOR project has attempted to introduce another widely-used German anti-corruption model – the V-model. The V-model is a software product created in 1999 to be used mainly for government defence projects. It has already been adopted by several countries as it is regarded as both efficient and relatively easy to use.

  119. 119.

    A similar provision for blacklisting with ‘informative character’ is also found in the new national procurement legislation (Art 57(4) New PPA). Practice will reveal whether it will yield any positive results against corrupt procurement participants.

  120. 120.

    ‘Central Purchasing Bodies’ (2011) SIGMA Public Procurement Brief 20, 7.

  121. 121.

    Logistik Zentrum Niedersachsen, Hessen Central Procurement Authority etc.

  122. 122.

    See Bescha.bund.de, Beschaffungsamt – Startseite (2015) <www.bescha.bund.de/DE/Startseite/home_node.html> accessed 25 April 2016.

  123. 123.

    By means of: (a) technical infrastructure enabling contracting authorities to award public contracts or to conclude framework agreements for works, supplies or services; (b) advice on the conduct or design of public procurement procedures; (c) preparation and management of procurement procedures on behalf and for the account of the contracting authority concerned (Art 2(15) Directive 24/2014/EU).

  124. 124.

    This comment mostly refers to the main German federal laws. Some of the acts enacted by the individual regions which regulate procurement (and are not part of the object of this work) can turn out to be more detailed or complicated, but the main parameters, rights and obligations of participants in public procurement procedures are set out in a very specific, clear and plain manner and are not subjected to quarterly bouts of supplementation and amendment, which creates an atmosphere of stability in the application of the provisions and confidence as regards the rules which need to be observed in order to ensure the lawful conduct of an award. These are all elements and features of an effective legal system which are painfully absent from the relevant Bulgarian legislation.

  125. 125.

    In 2014 the First EU Anti-Corruption Report (see above (n 9) 3) expressly highlighted that ‘Detailed rules regulate the work of the public administration. Comprehensive codes of conduct aim to prevent corruption at federal level and in many Länder. According to the research, 99% of the authorities contacted apply the ‘four eyes’ principle, whereby two individuals must approve important decisions, 80% have internal anti-corruption guidelines, 74% randomly monitor decision making where the risk of corruption is more prevalent, 62% have identified areas with high corruption risks, and 57% have appointed an anti-corruption commissioner. […]. Certain German municipalities, such as Hamburg, provide examples of local best practice for fostering integrity in the public sector’.

  126. 126.

    See above (n 43) 76.

  127. 127.

    As cited by M Brakalova in the German Chapter of Public Procurement 2015 (2016) International Comparative Legal Guides <www.iclg.co.uk/practice-areas/public-procurement/public-procurement-2015/germany> accessed 25 April 2016, 119.

  128. 128.

    K Osei-Afoakwa, ‘How Relevant is the Principle of Transparency in Public Procurement?’ (2014) 4(6) IISTE: Journal of Developing Country Studies 145.

Bibliography

Download references

Author information

Authors and Affiliations

  1. PPG Lawyers, Sofia, Bulgaria

    Irena Georgieva

Authors
  1. Irena Georgieva
    View author publications

    You can also search for this author in PubMed Google Scholar

Rights and permissions

Reprints and permissions

Copyright information

© 2017 Springer International Publishing AG

About this chapter

Cite this chapter

Georgieva, I. (2017). The German Procurement System – A Successful Battle Against Corruption. In: Using Transparency Against Corruption in Public Procurement. Studies in European Economic Law and Regulation, vol 11. Springer, Cham. https://doi.org/10.1007/978-3-319-51304-1_6

Download citation

  • DOI: https://doi.org/10.1007/978-3-319-51304-1_6

  • Published:

  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-319-51303-4

  • Online ISBN: 978-3-319-51304-1

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation