Anlage
Interim versions of paras 11.4 and 11.5 of the Additional Terms of Contract of
the Federal Ministry of Defense Implementing VOLB/B (ZVB/BMVg)
dated 28.01.2005
(This regulation shall be valid until a revised version of the ZVB/BMVg dated 28.01.1998 as
first amended on 10.05.2001 enters into force.)
11.4 Contractual penalties for promising or granting advantages
11.4.1 Contractors or their representatives must not offer, promise or grant, directly or
indirectly, advantages under § 331 of the German Penal Code to customer
personnel entrusted with research, development or acquisition tasks.
The above obligation shall apply to this contract and to all future business
relations.
11.4.2 If the contractor violates the obligation in para 11.4.1 he shall be liable to pay
the customer a contractual penalty of 5% of the contract value agreed (after
the time of violation).
With further contracts awarded after a violation, the contractual penalty to be
computed shall take into account any contracts awarded within a period of 3
years.
The amount of the penalty to be paid shall not exceed twenty times the value
of the advantage under para 11.4.1, however not 500,000.-- Euro. A fine
imposed under the provisions of the antitrust law shall be set off against the
imposed contractual penalty .
Claims of damages by the customer due to committed misconduct remain
unaffected by the contractual penalty, a forfeited penalty being set off against
the damages.
The amount of the contractual penalty shall not take into consideration those
contracts for which the contractor can prove that his violation of the provisions
outlined in para 11.4.1 did not, by common knowledge, have any direct or
indirect effect on the management of the contract(s) by Government
authorities.
Moreover, the contractual penalty shall not take into account contracts
awarded after the violation was revealed.
11.5 Contractual penalties for providing outside occupation without clearance
11.5.1 The provision of part-time occupation which, in terms of labor or service
legislation, represents an occupation pursued in addition to another or while in
retirement, may constitute an inadmissible advantage under the provisions of
para 11.4.1. Prior to hiring a member of the Bundeswehr for any type of
employment, including that of an expert or consultant, the contractor shall
request him/her to submit a clearance by the customer (the Federal Ministry of
Defense).
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The contractor shall also be obliged to employ a retired Bundeswehr civil
servant or a retired career soldier with less than five years of retirement only if
the latter has submitted a clearance by the customer (the Federal Ministry of
Defense) for this purpose. Civil servants of the Bundeswehr who have retired
at the age of sixty-five are subject to a time limit of three years. If the
clearance for a specific part-time occupation was given subject to conditions,
they are for the contractor to comply with.
11.5.2 If the required clearance as per para 11.5.1 is not granted the contractor shall
be liable to pay to the customer a contractual penalty amounting to five times
the remuneration paid since the date of violation, the minimum to be 5,000. -Euro and the maximum 100,000.--Euro.
The amount of penalty shall be computed in conformity with the provisions of
§ 4 of the Federal Regulation on Part-time Occupations as amended, and be
based on the gross amount. For any other purpose the provisions of para 11.4
will apply mutatis mutandis.
11.5.3 The contractual penalty is not applicable if the part-time occupation or the
occupation pursued while in retirement have been authorized according to the
law or subsequent to the violation.
11.5.4 If requested by the procurement office, the contractor shall supply whatever
information is required to compute the amount of the penalty.
© Bundesamt für Ausrüstung, Informationstechnik und Nutzung der Bundeswehr
(BAAINBw Z3.2) for the Federal Republic of Germany. All rights reserved!
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