Types of procedure
Public contracts can be awarded within the framework of the procedures set out in the Bundesvergabegesetz 2018 (BVergG 2018) – the following types of procedure are provided for:
- Open procedure
- Restricted procedure with/without notice
- Negotiated procedure with/without notice
Intellectual services are services whose essential content consists in solving a problem by performing intellectual work. For such services, no prior clear and complete description of the service is possible, which is why negotiations with tenderers are necessary, which are only permitted in the negotiated procedure.
Under special conditions for implementation, there are also procedures in the form of:
- a framework agreement (agreement without purchase obligation),
- a dynamic procurement system,
- a competitive dialogue,
- a direct award,
- a direct award with prior notice,
- an innovation partnership or
- an electronic auction (in combination with other procedures).
These regulations apply to all traders from EU Member States in Austria.
The procurement procedure to be used depends, amongst other things, on the value limit under which the total volume of the contract to be awarded falls and/or how the subject of the contract is described (there are special regulations for awarding in lots).
If a certain value limit is exceeded (upper threshold range), the provisions of the European procurement directives must be observed, which means, amongst other things, that the contract must be put out to tender across Europe. This does not mean that, in addition to the BVergG 2018, the regulations of the "extra" procurement directives must also be observed. Because the BVergG 2018 "transposes" the regulations of the procurement directives into Austrian law, a client complying with the regulations of the BVergG 2018 in the upper threshold range is simultaneously following the regulations of the BVergG 2018 and the procurement directives.
The majority of contracts are awarded in the lower threshold range – a national call for tenders is generally sufficient for these contract volumes.
The open procedure and restricted procedure with notice are freely selectable, i.e. always permissible. The permissibility of the other types of procedure depends on certain, more precisely regulated requirements.
With an open procedure, an unlimited number of undertakings are publicly invited to submit tenders.
Restricted procedures with prior notice and negotiated procedures with prior notice are two-stage procurement procedures, i.e. an unlimited number of interested parties are invited in the first stage to submit applications to participate in the procurement procedure (tenderer selection). After the tenderers have been selected, tenders are submitted in the second stage. The contracting entity limits the number of undertakings to be invited to submit a tender. The number is to be determined according to the service and
- may fundamentally not be less than three undertakings,
- in the restricted procedure with prior notice in the upper threshold range, may not be less than five undertakings.
An invitation to submit a tender may only be issued to authorised, capable and reliable (suitable) undertakings.
The specified number must ensure real competition. If more participation applications are received, the best undertakings among those that are suitable are to be selected.
With the restricted procedure without prior notice and the negotiated procedure without prior notice, the conditions just outlined essentially apply. However, the undertakings to be invited should be changed as often as possible.
With direct awards, the service may only be obtained from one authorised, capable and reliable trader. The authorisation, capacity and reliability of the successful tenderer must at the latest apply at the time of the award. A direct award is only permissible in the lower threshold range if the estimated contract value does not reach 100,000 Euro.
In the case of a direct award with prior notice, the service may only be obtained from one authorised, capable and reliable trader (suitability at the latest at the time of the award!). It is only permissible if the estimated contract value does not reach the following amounts:
- 130,000 Euro in the case of supply and service contracts and
- 500,000 Euro in the case of construction contracts
The regulations apply to the "traditional area" of procurement procedures (contracting authorities). The (slightly) different provisions for the sectoral area and the awarding of concessions are therefore not set out.
- USP Editorial Staff
- Federal Chancellery