What is professional misconduct

Technical literature Comments and manuals VgV / UVgO commentary Commentary on VgV, UVgO and VergStatVO VgV - Ordinance on the award of public contracts Section 2 Award procedure Subsection 5 Requirements for companies; Suitability § 50 VgV Uniform European self-declaration B. Standard form for the EEE (Paragraph 1 S. 1) IV. Content and instructions for completing 3. Reasons for exclusion (Part III) c) Reasons in connection with insolvency, conflicts of interest or professional misconduct (Section C)

Malte Müller-Wrede
cc) Professional misconduct
Furthermore, the standard form asks whether and, if so, to what extent the economic operator has been guilty of "grave misconduct" in the course of his professional activity. The form does not explain what is meant by serious misconduct in the context of professional activity, but instead refers to any definitions in national law, in the relevant notice or in the contracting documents1 of the contracting authority
The query refers to the optional reason for exclusion in Section 124 (1) No. 3 GWB. However, the standard form only gives an abridged version of the exclusion. According to Section 124 (1) No. 3 GWB, only such serious misconduct should justify a reason for exclusion that calls into question the integrity of the company. Serious misconduct then comes into play in the event of a breach of legal or contractual obligations (e.g. also in the event of a breach of contract execution conditions in previous public contracts) that are of such intensity and severity that the contracting authority can legitimately doubt the company's integrity. As a rule, violations of the obligation to confidentiality and security are likely to constitute serious misconduct within the meaning of Section 124 (1) No. 3 GWB GWB has not yet resulted in a final conviction4 or if a criminal offense has not yet been committed that is not listed in Section 123 GWB, but which nevertheless calls the company's integrity into question
In the event of serious misconduct, the economic operator must indicate in the standard form whether and, if so, which self-cleaning measures he has taken. With regard to the content and scope of the statements to be made in the standard form, the standard of Section 125 GWB.6 applies

1In accordance with the legal definition in Art. 2 Para. 1 No. 13 RL 2014/24 / EU, the Commission means by order documents all documents that are created by the contracting authority or to which it refers in order to describe elements of the contract award or the procedure or to set. In addition to the tender documents in accordance with Section 29 VgV, this also includes the prior information in accordance with Section 38 (4) VgV and the request for confirmation of interest in accordance with Section 38 (5) VgV.2Cf. Fn. 29 of the standard form in Annex 2 Regulation (EU) 2016 / 7.3 Explanation of the law, VergRModG 2016, BT-Drs. 18/6281, 105.4 See also Recital 101 RL 2014/24 / EU. Explanation of the law, VergRModG 2016, BT-Drs. 18/6281, 105.6 On the content-related requirements of Section 125 GWB, see above Rn 93.