contracting authority

Which translation, when

Why

Contracting authority is the öffentlicher Auftraggeber, and the German definition catches more entities than the English label suggests, because it works functionally rather than by institutional form. Alongside the obvious addressees, the federal and Land authorities and the municipalities, the Act reaches legal persons of public and of private law which were established for the particular purpose of meeting needs in the general interest that are not of an industrial or commercial character, provided the state predominantly finances them, supervises their management or appoints a majority of the members of their governing bodies. The consequence is that a municipal utility company, a public hospital or a development corporation organised as a private-law company is regularly a contracting authority and must run procurement procedures, however commercial its appearance, and foreign counterparties who assume that a GmbH buys freely are frequently mistaken. The Act then separates three categories that a translation must not level: the öffentlicher Auftraggeber proper, the Sektorenauftraggeber active in water, energy, transport and postal services, and the Konzessionsgeber awarding concessions, each with its own definition, its own thresholds and its own procedural regime. Finally the vocabulary needs care in the other direction. Auftraggeber without the attribute is simply the client in any contract for works or services and carries no procurement meaning at all, so the adjective is load-bearing; die Vergabestelle is the office actually conducting the procedure, useful in correspondence but not a statutory category; and Beschaffungsstelle belongs to administrative usage.

Typical mistakes

• The definition is functional, so a company in private-law form can be a contracting authority and cannot be assumed to buy freely.
• Sektorenauftraggeber and Konzessionsgeber are separate categories with their own rules, so one English label for all three hides which regime applies.
• Auftraggeber without the attribute means the client in any contract, so dropping öffentlicher removes the procurement meaning.

What matters

Establishing whether a German counterparty must tender: the analysis should test the functional criteria rather than the legal form, and then identify whether the classical, the sector or the concession regime applies.

Examples