What does contracting authority mean?
In German procurement law, the term contracting authority (Auftraggeber) refers to the public body or institution that has a procurement need and meets it on the market through a formal procurement procedure. Under Section 99 GWB (German Act against Restraints of Competition), public contracting authorities include in particular regional authorities (the federal government, the federal states and municipalities), their special funds and other legal persons governed by public and private law that were established for the specific purpose of meeting needs in the general interest that are not of an industrial or commercial nature, and that are mainly publicly financed or controlled.
Besides classic public contracting authorities, procurement law also recognizes sector contracting entities (Section 100 GWB), which operate in water, energy, transport and telecommunications, as well as concession grantors. Each of these categories is subject to specific procurement rules, which are reflected in the applicable ordinances (VgV, SektVO, KonzVgV). The contracting authority is responsible for the proper conduct of the entire procurement procedure, from determining the need and preparing the procurement documents to the award and documentation.
A key principle is that the contracting authority must uphold the principles of transparency, equal treatment and competition. It is required to tender the contract in a way that allows fair competition and rules out discrimination against individual bidders. The awarding office (Vergabestelle), as the executing body of the contracting authority, handles the operational processing.
Relevance for bidders
For companies that take part in public tenders, it is essential to classify the contracting authority correctly. The type of contracting authority determines which procurement law applies and which legal remedies are available in a dispute. For example, public contracting authorities above the EU thresholds are subject to the strict rules of GWB procurement law, with the option of a review before the public procurement tribunal (Vergabekammer).
Bidders should also check whether the contracting authority uses central purchasing bodies, because this can affect the tender process and the procurement documents. Identifying the responsible contracting authority also matters for communication during the procedure, for example for bidder questions or submitting evidence.
Legal framework
The definition and distinction of the different types of contracting authority are in Sections 98 to 101 GWB. In addition, the Vergabeverordnung (VgV, Public Procurement Ordinance), the Sektorenverordnung (SektVO, Sector Ordinance), the Konzessionsvergabeverordnung (KonzVgV, Concession Award Ordinance) and the Unterschwellenvergabeordnung (UVgO, Sub-Threshold Procurement Rules) govern the respective procedural obligations. At European level, EU Procurement Directives 2014/24/EU and 2014/25/EU form the basis.