The Bundesvergabegesetz 2018 is the legal basis for the procurement control procedures of all contracting authorities in the area of the federal government. Legal protection is the responsibility of the Federal Administrative Court in this area.
These regulations apply to all traders from EU Member States in Austria.
Before the awarding of a contract or revocation, the Federal Administrative Court is responsible for carrying out a review procedure and for issuing interim injunctions.
After the awarding of a contract or revocation of a call for tenders, the Federal Administrative Court is responsible for carrying out determination procedures. In connection with some of these determination procedures, the Federal Administrative Court is also responsible for the annulment or cancellation of the (already concluded) contract or revocation and for imposing 'alternative' sanctions against the contracting entity.
Federal Administrative Court
In the review procedure of the Federal Administrative Court, 'separately contestable' decisions of the contracting entity can be checked and annulled. A trader can only apply for the review of such a decision by the contracting entity in the procurement procedure for illegality within the period provided for the respective separately contestable decision (after that it can no longer be contested!).
Those entitled to apply are anyone
- who claims an interest in the conclusion of a contract (which is subject to the Bundesvergabegesetz 2018), and
- who has suffered or is in danger of suffering damage as a result of the alleged illegality.
The application for review has no suspensory effect for the procurement procedure concerned.
In addition to the application for review, it is possible to apply for an interim injunction, with which the entire procurement procedure or individual decisions can be temporarily suspended!
Deadlines for applications for review
After expiry of the deadlines for reviewing a 'separately contestable decision', it is no longer possible to have the contracting entity’s errors in connection with this decision checked. This is intended to ensure that procurement procedures can be completed within a reasonable time.
A tenderer must therefore, for example, present a defect identified in the call for tenders document as early as possible. If he/she waits until it is established that he/she is not to receive the contract (and the deadline for the application for review in relation to the call for tenders has expired in the meantime), he/she can no longer invoke the error in the call for tenders document.
The deadlines within which separately contestable decisions have to be contested depend on the way in which the decision is brought to the attention of the tenderer. It is
- ten days if the decision is transmitted or provided electronically and the decision is announced and
- 15 days if it is communicated by post or in another suitable manner
and begins with the transmission or provision of the decision or the first availability of the announcement.
There are also special deadlines. In the case of a direct award, the deadline is ten days from the (possible) knowledge of the separately contestable decision.
Applications for review of the call for tenders (with the exception of the notice in the case of direct awards with prior notice) can also be submitted no later than seven days before expiry of the tender period, the period for submission of competition work or the participation application period, if this extends the application period.
An application for review must in any case contain:
- designation of the procurement procedure and the contested separately contestable decision,
- designation of the contracting entity, the applicant and possibly the awarding authority and their electronic address
- presentation of the relevant facts and the interest in the conclusion of the contract; if the award decision is opposed, the tenderer envisaged for the award must be designated,
- information about the applicant’s alleged impending damage or damage already suffered
- objections (designation of the rights which the applicant considers to have been violated) and grounds (on which the allegation of illegality is based)
- application for annulment of the contested separately contestable decision
- information for the assessment of timeliness
- Review applications (applications for annulment): without delay, no later than six weeks after receipt of the application
- Applications for the issuing of interim injunctions: without delay, but at the latest within ten days of receipt of the application (within fifteen days if the application needs to be improved)
- Applications for determination: without delay, no later than six weeks after receipt of the application
Legal protection in the federal provinces
The (nine) provincial procurement law protection acts based on the Bundesvergabegesetz 2018 form the legal basis for the procurement control procedures of all contracting authorities in the enforcement area of the federal provinces. Each federal province has its own regional administrative court, which is responsible, among other things, for legal protection in matters of procurement law.
In addition to legal protection before Austrian authorities, proceedings can even simultaneously take place at European level.
Further information on the reimbursement of fees can also be found at USP.gv.at.
- Federal Administrative Court (→ BVwG)German text
- Legal protection – Procurement control – FAQs (→ WKO)German text
- Bundesvergabegesetz 2018 (BVergG 2018)
- USP Editorial Staff
- Federal Chancellery