The Federal Administrative Court reviews the procurement procedures of all contracting authorities in the area of the federal government (e.g. Ministries, ÖBB). In order to obtain a review, companies must submit an application to the Federal Administrative Court. They have two options for having a procurement procedure reviewed by the courts:
- In the review procedure, companies can get 'separately contestable' decisions of the contracting entity checked. and annulled. In order for the Federal Administrative Court to review the decision, companies must apply for a review of the decision on the grounds of illegality within a certain period of time. After that it can no longer be contested. An application for a review procedure is possible until the contract is awarded or the call for tenders is revoked, within the deadlines.
- In the determination procedure, the Federal Administrative Court checks whether the awarding of a contract or the revocation of a call for tenders or an award procedure without public notice was unlawful. This can lead to an annulment or cancellation of the (already concluded) contract or revocation and to imposing 'alternative' sanctions against the contracting entity.
If the contracting authority is a federal province oder town, the regional administrative courts are in charge for legal protection in matters of procurement law. Proceedings can simultaneously take place at European level.
An application for review has no suspensive effect. It is possible to apply for an interim injunction, with which the entire procurement procedure or individual decisions can be temporarily suspended.
- 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
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 suspensive effect for the procurement procedure concerned.
A tenderer must, 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.
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.
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
|Direct awards with prior notice - Construction contracts
|Direct awards with prior notice - Supply and service contracts
|Procedures without prior notice (in accordance with section 43 (2)
and section 44 paragraph 2 (1) and (2) and section 44 paragraph 3 BVergG 2018)
|Construction contracts in accordance with Section 43 (1) BVergG 2018
|Other construction contracts in the lower threshold range (LTR)
|Other supply and service contracts and competitions (LTR)
|Construction contracts in the upper threshold range (UTR)
|Supply and service contracts and competitions in the UTR
|Construction and service concessions in the LTR
|Construction and service concessions in the UTR
For interim injunctions, the fee is half the fee for the review application. There are also other special regulations according to which the above fee rates are increased or reduced.
Reimbursement of fees
An applicant who is even only partially successful before the Federal Administrative Court is entitled to reimbursement of the fees by the contracting entity (even if deprived of a cause for action during the pending proceedings).
In the case of an interim injunction, the entitlement to reimbursement of fees only exists if
- the application for review (main application) is granted or if the applicant is deprived of a cause for action during the pending proceedings and
- the application for the issuing of an interim injunction was granted or would have had to be granted if the applicant is deprived of a cause for action or the application for the issuing of an interim injunction was rejected only on the basis of a balance of interests or would have had to be rejected if the applicant is deprived of a cause for action.
The Federal Administrative Court has to decide on the reimbursement of fees no later than three weeks from the point at which it is established that there is entitlement to reimbursement of fees.
These regulations apply to all traders from EU Member States in Austria.
- Federal Administrative Court (→ BVwG)German text
- Legal protection – Procurement control – FAQs (→ WKO)German text
Bundesvergabegesetz 2018 (BVergG 2018)
- USP Editorial Staff
- Federal Chancellery