Strafbarkeit des Kick-back-Vorgangs in der öffentlichen Auftragsvergabe

Public procurement activity is prone to corruption. A special form of corruption is the so-called kick-back. It describes a benefit which is already included in the order amount of a bidding company to the public servant of the contracting authority, with the aim of obtaining preferential treatment in the procurement procedure. Kick-backs in the public procurement procedure damage state assets as well as effective competitions. Public procurement must be protected against kick-backs by severe prevention through procurement law and criminal law, more precisely by a comprehensive threat of sanctions. The author examines to what extent procurement and criminal law fulfil this objective. He analyses procurement law regarding preventive and abuse potentials as well as risks of criminal liability for the civil servant involved in the award procedure. Based on this analysis, he devises concrete proposals for a greater effort to combat kick-backs, i.a. implementing a special criminal offence.