Article 14 — Optional exclusion grounds
In brief
This Article sets out grounds on which public buyers may, but are not obliged to, exclude an economic operator from an R&D procurement procedure. They cover situations such as breaches of applicable obligations, insolvency, grave professional misconduct, collusion, poor prior performance, serious misrepresentation, security concerns and distortive foreign subsidies. It also gives operators a right to demonstrate that they have remedied the situation, and sets time limits and reporting duties.
Key points
- Optional grounds include demonstrated breaches of relevant obligations, bankruptcy or insolvency, grave professional misconduct, indications of anti-competitive agreements, and significant or persistent deficiencies in a prior contract that led to early termination or comparable sanctions.
- Further grounds cover serious misrepresentation or undue attempts to gain advantage, insufficient reliability regarding security and public safety interests, and foreign subsidies distorting the internal market that are likely to affect the tender.
- Operators may present evidence to rebut a ground or to show self-cleaning, such as paying compensation, cooperating with investigators and taking concrete preventive measures.
- Member States may designate a national authority to assess self-cleaning evidence, and buyers must rely on a positive decision by that authority.
- Where no self-cleaning measures are taken and no period is set by judgment, exclusion may last up to five years from the relevant conduct; exclusions based on distortive foreign subsidies must be notified to the Commission.
What it means in practice
Contracting authorities gain discretion to manage risk, but must exercise it on the basis of appropriate evidence and give operators the chance to demonstrate reliability. Innovative firms, start-ups and SMEs facing an optional ground can seek to remain in the procedure by evidencing remedial action, and can benefit from a competent national authority’s positive assessment where one exists. Operators already excluded by final judgment cannot use the self-cleaning route during that exclusion period.
Official text — Article 14 (COM(2026) 567)
39 Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating
fraud and counterfeiting of non -cash means of payment and replacing Council Framework Decision
2001/413/JHA (OJ L 123, 10.5.2019, p. 18, ELI: http://data.europa.eu/eli/dir/2019/713/oj).
40 Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on
combating the sexual abuse and sexual exploitation of children and child pornography, and replacing
Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1, ELI:
http://data.europa.eu/eli/dir/2011/93/oj.
1. Public buyers may at any time during the R&D procurement procedure exclude an
economic operator, including individual members of groups of economic operators,
from participation in a R&D procurement procedure, where:
(a) the public buyer can demonstrate by any appropriate means that the economic
operator has breached applicable obligations under relevant Union legislation,
as referred to in Article 4(6);
(b) the economic operator is bankrupt or is the subject of insolvency or winding-up
proceedings or a comparable situation;
(c) the public buyer can demonstrate by appropriate means grave professional
misconduct by the economic operator, which renders its integrity or reliability
questionable;
(d) the public buyer has sufficiently pla usible indications to conclude that the
economic operator has entered into agreements with other economic operators
aimed at distorting competition;
(e) the economic operator has shown significant or persistent deficiencies in the
performance of a substant ive requirement under a prior public contract, which
led to early termination of that prior contract, damages or other comparable
sanctions by the public buyer;
(f) the economic operator, in the context of the concerned R&D procurement
procedure, has been found accountable of serious misrepresentation with
regard to the information required for the verification of the absence of grounds
for exclusion or the fulfilment of the selection criteria; or has otherwise
undertaken to unduly obtain advantages in the R&D procurement procedure;
(g) the public buyer can demonstrate by any appropriate means, including but not
limited to classified information or non -publicly disclosable, assessments
provided by competent national authorities, that the economic operator do es
not possess sufficient reliability to exclude risks to the security and public
safety interests of the Union or of one or more Member States.
(h) the economic operator has benefitted from foreign subsidies distorting the
internal market, established by an implementing act adopted by the
Commission pursuant to Article 31 (2) of Regulation (EU) 2022/2560 41, in the
three years preceding the public procurement procedure, and the public buyer
has sufficiently plausible indications to conclude that the foreign subsidies
concerned are likely to have an impact on the tender of the economic operator.
2. Any economic operator subject to an exclusion pursuant to paragraph1 may provide
evidence to rebut the existence of the exclusion ground or to demonstrate that it has
taken sufficient measures to demonstrate its reliability despite the existence of the
exclusion ground.
For this purpose, the economic operator shall, in particular, prove that it has
(a) paid or undertaken to pay compensation in respect of any damage caused by
the misconduct;
41 Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on
foreign subsidies distorting the internal market (OJ L 330, 23.12.2022, p. 1, ELI:
http://data.europa.eu/eli/reg/2022/2560/oj).
(b) clarified the facts and circumstances in a comprehensive manner by actively
cooperating with the investigating authorities; and
(c) taken concrete technical, organisational and personnel measures that are
appropriate to prevent further misconduct.
If the public buyer considers the evidence provided as sufficient, the economic
operator concerned shall not be excluded from the R&D procurement procedure.
The measures taken by the economic operators shall be evaluated taking into account
the gravity and particular circumstances of the misconduct. In assessing the measures
taken by the economic operator public buyers shall take into account the nature,
extent and timing of the cooperation with the relevant investigating authorities.
Where the measures are considered to be insufficient, the economic operator shall
receive a statement of the reasons thereto.
An economic operator which has been excluded by final judgment in any Member
State from participating in proc urement procedures shall not be entitled to make use
of the possibility provided for under this paragraph during the period of exclusion
resulting from that judgment.
3. Member States may designate a national authority competent to evaluate the
evidence and decide whether it is sufficient for the purposes of this paragraph. Public
buyers shall rely on a positive decision of the national competent authority for the
purpose of their procurement procedures.
4. Where no measures as specified in paragraph 2 are taken and where the period of
exclusion has not been set by final judgment, public buyers may exclude economic
operators pursuant to this Article during a period of five years from the date of the
conduct giving rise to exclusion or, in the case of contin ued or repeated acts, the date
on which the conduct ceases, but not after that maximum period.
5. Where a public buyer excludes an economic operator on the basis of paragraph 1,
point (h), it shall inform the Commission thereof.
Source: European Commission, proposal for a Regulation establishing the European Innovation Act, COM(2026) 567 final, 9 September 2026. Read the official proposal (PDF). Text may change during the legislative process.
Anthony Bochon’s analysis
The optional grounds are where a buyer’s judgement really comes into play, and the drafting here rewards close reading. Alongside the classic triggers — insolvency, grave professional misconduct, collusion, prior poor performance and misrepresentation — the Regulation adds two provisions of contemporary significance: exclusion on security grounds, potentially on the basis of classified assessments, and exclusion linked to foreign subsidies distorting the internal market under Regulation (EU) 2022/2560, with a duty to inform the Commission. That last hook is a deliberate bridge to the Foreign Subsidies Regulation and, in my view, one of the more strategically important features of the whole exclusion regime.
Equally important is the structured self-cleaning mechanism: an operator can rebut a ground by showing compensation, active cooperation with investigators, and concrete remedial measures, with Member States free to designate a competent authority whose positive decision buyers must respect. I would advise addressees to build and document a credible compliance and remediation record in advance, because the assessment turns on the nature, extent and timing of cooperation — and I expect the reliance on non-public security assessments to attract scrutiny on due-process grounds as the text moves through the legislature.