Exclusion of tenderers and elimination of tenders
In general, these rules also apply to entrepreneurs from EU Member States in Austria.
Exclusion of tenderers
The contracting authority must at any time (with certain exceptions!) exclude traders from participating in the procurement procedure in the case of
- final conviction (e.g. membership of a criminal or terrorist organisation, acceptance of benefits, bribery, fraud, misuse of funds, money laundering, human trafficking)
- opening of insolvency proceedings or the non-opening thereof due to lack of assets to cover costs
- liquidation of the trader and cessation of his/her commercial activity
- improper unfavourable agreements to the detriment of the contracting entity or anti-competitive agreements
- serious misconduct in the context of professional activity, in particular contrary to provisions of labour, social or environmental law
- failure to meet the obligation to pay SI contributions/taxes/duties in Austria or in the country of the undertaking’s registered office
- conflict of interests that cannot be prevented by other, less restrictive measures
- participation in preliminary work that would lead to a distortion of competition
- significant or lasting defects (with fulfilment of essential requirements of a previous contract) that have led to the premature termination of the contract, compensation or comparable sanctions
- false declarations or failure to provide information on the suitability of the trader or failure to submitevidence
- attempt to improperly influence decision making
- attempt to obtain confidential information that could result in undue advantages in the procurement procedure
- transmission or attempt to transmit negligent misleading information to the contracting entity, which could have a significant impact on the decision to exclude or select undertakings or on the awarding of the contract
The contracting entity can waive the exclusion under certain circumstances, e.g. if the trader’s capacity is sufficient or if the payment of outstanding SI contributions/taxes/duties has been made.
Elimination of defective tenders
Before choosing the tender for the award decision, the contracting entity must eliminate the following tenders on the basis of an examination:
- tenders from tenderers to be excluded due to the performance of preliminary work,
- tenders from unsuitable tenderers
- tenders with implausible composition of the total price
- tenders without pricing, with the declaration that they will undercut the cheapest tender
- tenders with no proof of deposit (if requested) when the tender is opened
- tenders that are late
- tenders that are contrary to the terms of the call for tenders
- partial, alternative, variant and modification tenders, if they have not been approved
- non-equivalent alternative or modification tenders
- alternative tenders that do not meet the minimum requirements
- incorrect or incomplete tenders if their defects have not been rectified or cannot be rectified
- tenders containing incorrect calculations which, according to the stipulations in the call for tenders, are no longer to be considered
- tenders from unsolicited tenderers
- tenders from tenderers who can be shown to have interests that may adversely affect the performance of the contract,
- tenders from tenderers in respect of which the contracting entity at the time of the award decision or the expiry of a set grace period has
- no official decision on the admissibility of performing the activity in Austria or
- no evidence of the necessary professional qualification or
- no evidence of the initiation of a procedure to obtain a decision on the admissibility of performing the activity in Austria before expiry of the tender period or
- an official decision excluding the admissibility of performing an activity in Austria.
Tenders in which the absolute value of all calculation errors is less than two per cent of the tender amount are to be corrected and left in the tender evaluation. Ranking of a tender after a calculation error has been corrected is not permitted. The call for tenders documents can also stipulate that tenders with major calculation errors are to be taken into account and ranking is permitted.
In any case, not all defects or deficiencies in the tender necessarily lead to an elimination. A defect is deemed to be non-rectifiable if the rectification of the defect materially improves the competitive position of the tenderer and would thus violate the principle of equal treatment.
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.
Bundesvergabegesetz 2018 (BVergG 2018)
Responsible for the content: Federal Ministry of Justice