Principles of the procurement procedure

Contracting authorities

The Bundesvergabegesetz is firstly binding on what are known as contracting authorities. In addition to the federal government, federal provinces, municipalities and associations of municipalities, this also includes specific other institutions (in particular outsourced undertakings). Other institutions only fall under the Bundesvergabegesetz if they meet the requirements laid down in that act (this includes, for instance, tasks in the general interest that are carried out by the institution concerned having to be involved).

Sectoral contracting entities

In addition to this traditional area, what are known as the sectoral areas are subject to the Bundesvergabegesetz. Contracting entities in the sectoral area carry out certain activities such as, for example, water and energy supply and transportation.

With the exception of its second part, the Bundesvergabegesetz applies to the procurement procedure of sectoral contracting entities.

The Bundesvergabegesetz applies to:

• construction contracts, supply contracts, service contracts
• construction and service concession contracts

If a contract contains various components of the aforementioned types of contract, the Bundesvergabegesetz also regulates how these contracts are to be assessed.

Threshold values

The Bundesvergabegesetz makes a distinction between the upper and lower threshold range. While the upper threshold range essentially reflects the regulations of the procurement directives of the European Union, the lower threshold range could be more flexibly structured. That means, for instance, that the contracting entity has more scope in the selection of the procurement procedure in the lower threshold range and shorter deadlines are to be met. The total value excluding turnover tax which the contracting entity is expected to pay serves as the basis for calculating the threshold value. In terms of figures, the threshold values depend on the contracting entity and the type of contract.

The threshold values are adjusted every two years to the corresponding values of the Government Procurement Agreement (GPA) and are therefore subject to certain fluctuations. The relevant threshold values are announced by the Federal Ministry of Justice in the Federal Law Gazette (cf. most recently the threshold values since 7 February 2023, BGBl II No 34/2923).

Schwellenwerteverordnung (Threshold Value Regulation)

Due to the renewed extension of the Schwellenwerteverordnung 2023 until 31 December 2023, contracts in the construction, supply and service sector up to a value of 100,000 Euro can be awarded directly to suitable, capable and reliable undertakings. Furthermore, the threshold value for what is known as the 'restricted procedure without notice' is also being extended for construction contracts of 1 million Euro. However, here too, according to the Federal Procurement Act, at least five authorised, capable and reliable undertakings must be invited to submit a tender, which guarantees fair competition for the respective contract.

Procurement principles

The Bundesvergabegesetz provides for a separate procedure for the procurement procedure, which must be observed. The principles which apply in this case include the ban on discrimination in accordance with the principles of free and fair competition and the equal treatment of all applicants and tenderers. A contract may only be awarded to authorised, capable and reliable undertakings at reasonable prices.

Suitability

An undertaking's suitability for participating in a procurement procedure is determined by the contracting entity by checking its authorisation, reliability and financial and economic and technical capacity. Its suitability requires compliance with all three elements mentioned. It is possible to submit a European Single Procurement Document.

Legal bases

• Bundesvergabegesetz 2018 (BVergG 2018)
• Schwellenwerteverordnung 2023
• Von der Europäischen Kommission festgesetzte Schwellenwerte für Auftragsvergabeverfahren ab 1. Jänner 2018 (BGBl. II Nr. 411/2017)