Award procedure

Procedure

The unopened tenders received in good time are opened at the specified place and at the specified time, immediately after the tender period has expired. The examination and content assessment of the tenders can only be carried out by people who meet the specialist requirements.

In the scope of a negotiated procedure, the contracting entity can conduct negotiations with the tenderers about the tenders submitted. These negotiations serve the objective of being able to optimally coordinate the tender with the contracting entity’s requirements. It should be noted that pure price negotiations, that is to say negotiations in which the service content is not changed, are in breach of the principles of procurement law. Negotiations regarding the tenders are prohibited for open and restricted procedures!

The elimination of tenders constitutes a separate stage of the procedure. Tenders from tenderers who are to be excluded from the procedure or do not have the authorisation, reliability and capacity for the specific procedure are to be eliminated. Tenders with an implausible composition of the overall price (speculative tenders), tenders received late, tenders which are anti-competitive (e.g. due to price agreements) and tenders from unsolicited tenderers are also in particular to be eliminated. Of those tenders that remain after the elimination, the award decision – in accordance with the information in the call for tenders – is made in favour of the most technically and economically advantageous tender or the tender with the lowest price, with the exclusive use of the criterion of lowest price having been restricted by an amendment of the Bundesvergabegesetzes (BVergG). The award decision is the non-binding declaration by the contracting entity of which tenderer is to be awarded the contract.

The award decision is made after the tender examination and must be demonstrably communicated to all tenderers who are still in the procurement procedure, along with justification. This justification must in any case contain the information specified by law (in particular why a tenderer was not successful with his tender). The award decision itself does not (yet) result in an order being placed. The award decision is a decision that is separately contestable before the procurement control authorities.

If the contract is otherwise null and void, the award (that is the contract conclusion, the order placement) may only be granted after a legally stipulated standstill period, the end of which must be communicated in the scope of the aforementioned announcement of the award decision.

A procurement procedure ends with the conclusion of a service contract (contract conclusion) or with the revocation of the call for tenders (the revocation decision constitutes a separately contestable decision).

Examination of the appropriateness of prices – In-depth tender examination

The examination of the appropriateness of prices (in-depth tender examination) in the procurement procedure differs for contracting authorities and sectoral contracting entities and depends on the procurement procedure used.

Course of procedure – Contracting authorities

The contracting entity must request clarification of the items in the tender and examine them in depth if

• tenders have an unusually low total price in relation to performance,
• tenders have excessively high or excessively low unit prices for key items, or
• after examination there are reasonable doubts about the appropriateness of prices.

In the course of the in-depth tender examination, the contracting entity must ask the tenderer for a binding written clarification, or a verbal or telephone clarification in the case of less significant ambiguities. The subsequent examination must take into account the explanations received and any evidence submitted by the tenderer.

During the examination, the contracting entity must in particular take into account explanations regarding the following aspects:

• economic efficiency of the chosen manufacturing or construction procedure or the provision of the service
• chosen technical solutions
• exceptionally favourable conditions available to the tenderer for the provision of the service
• authenticity of the service proposed by the tenderer
• labour and social law provisions applicable at the place of performance
• any granting of State aid to the tenderer

The information provided by the tenderer must be attached to the record of the examination of the tenders. This formalised approach can be dispensed with in the lower threshold range.

If the examination of the tenders reveals any ambiguities

• about the tender, including any variant, alternative or modification tenders,
• about the planned type of implementation or
• if deficiencies are found,

the tenderer must be asked for a binding written clarification, if the ambiguities are of importance for the assessment of the tenders.

The written information provided by the tenderer and any evidence submitted by the tenderer must be attached to the record of the examination of the tenders. This formalised approach can be dispensed with in the lower threshold range.

Course of procedure – Sectoral contracting entities

The sectoral contracting entity must request clarification of the items in the tender and examine them in depth if

• tenders have an unusually low total price in relation to performance or
• there are reasonable doubts about the appropriateness of prices.

The sectoral contracting entity must ask the tenderer for a binding written clarification, or a verbal or telephone clarification in the case of less significant ambiguities. The subsequent examination must take into account the explanations received and any evidence submitted by the tenderer.

During the examination, the sectoral contracting entity must in particular take into account explanations regarding the following aspects:

• economic efficiency of the chosen manufacturing or construction procedure or the provision of the service
• chosen technical solutions
• exceptionally favourable conditions available to the tenderer for the provision of the service
• authenticity of the service proposed by the tenderer
• labour and social law provisions applicable at the place of performance
• any granting of State aid to the tenderer

This formalised approach can be dispensed with in the lower threshold range.

Further information on tender and award periods and elimination of tenderers and elimination of tenders can also be found at USP.gv.at.

Legal Basis

Bundesvergabegesetz 2018 (BVergG 2018)