Public procurement regulation and law in Austria

June 2019

As of 1 March 2019 announcements and notifications for Austria have to be published under the link https://ausschreibungen.usp.gv.at/at.gv.bmdw.eproc-p/public. This service must be available free of charge, direct, unrestricted, complete and always available (Section 54 (2) of the Federal Procurement Act 2018 – BVergG 2018, "BVergG").

Further, as of 1 March 2019 metadata must be made public via https://www.data.gv.at/ in the OGD-model. Metadata are provided by the contracting authority and linked to so-called core data (according to Annex VIII BVergG) of the individual procedures. The data format is freely accessible. This not only allows these core data to be taken up and reused by businesses, but also by civil society, which should make information more accessible for procurement procedures (e.g. through the development of apps, analysis of certain categories of data, etc.).The Core Data Regulation ("Kerndaten-VO") provides more information about the technical structure and data format. Public contracting authorities must comply with the new publication obligations both for announcements (= information at the beginning of the award procedure about the contracting authority's intention to award a contract after a procurement procedure) and notifications (= ex post information on contracts that have already been awarded) for contracts above the thresholds (§§ 59, 62 BVergG) as well as those procedures below the limit (§§ 64, 66 BVergG). Regarding notifications above the thresholds, contracts awarded based on framework agreements with a contract value of less than EUR 50,000 are excluded pursuant to § 62 BVergG. As for notifications in below-limit procedures, § 66 BVergG generally excludes procurement procedures with contract values below EUR 50,000.

This publication obligation replaces the previous publication media on a federal and provincial level. For procedures started before 1 March 2019, the procedure must be completed in accordance with the legal situation applicable at the time of initiation (§ 376(4) BVergG).

• Public supply contracts and public service contracts: EUR 221,000 (§ 12 (1) Z 3) BVergG:
  • if the contracting authority is a central purchasing body, or in case of particular supply contracts in the defence sector: EUR 144,000 (§ 12 (1) Z 1 BVergG),
  • for public service contracts listed in Annex XVI: EUR 750,000 (§ 12 (1) Z 2) BVergG,
• public works contracts and concessions: EUR 5,548,000 (§ 12 (1) Z 4) BVergG,
• design contests by central purchasing bodies (prize money): EUR 144,000; in case of the other contracting authorities: EUR 221,000 (§ 12 (2) BVergG),
• sector area:
  • public supply contracts, public service contracts and design contests for obtaining public supply contracts: EUR 443,000 (§ 185 (1) Z 2 BVergG),
  • public works contracts: EUR 5,548,000 (§ 185 (1) Z 3 BVergG),
  • design contests: EUR 443,000 (§ 185 (2) BVergG).

If the procurement value exceeds these thresholds, it qualifies as an above-threshold procurement; if not, it constitutes a below-threshold procurement. Above-threshold procurements have to meet stricter legal requirements.

• The contracting authority is free to choose between the open and the restricted procedure (§ 33 BVergG).
• A negotiated procedure with prior publication can be carried out (§ 34 BVergG):
  • if no tenders or no suitable tenders or no applications have been submitted in response to an open or restricted procedure (in this case choosing a negotiated procedure without prior publication is possible under certain conditions),
  • if the performance does not permit prior overall pricing due to the contract’s nature or associated risks,
  • if the needs of the contracting authority cannot be met without adaptating readily available solutions,
  • if the contract requires conceptual or innovative solutions, or
  • if the technical specifications cannot be established with sufficient precision.
• A negotiated procedure without prior publication (§§ 35–37 BVergG) is allowed:
  • if the performance can only be provided by a particular contractor for technical or artistic reasons, or in order to protect exclusive rights,
  • if urgent and compelling reasons do not allow the implementation of an open or restricted procedure with prior publication, or
  • under certain conditions recurring procurement of services of the same kind.

• The competitive dialogue (§ 34 BVergG) is applicable under the same conditions as the negotiated procedure with prior publication.
• The innovative procedure (§ 41 BVergG) is applicable if there is need for innovative works, services or supplies, which cannot be met by existing works, services or supplies on the market.

• § 2 Z 15 lit a BVergG – only allows for separately appealable decisions:
  • open procedure: the tender documents, other declarations within the time limit for tenders, the elimination of a tender, the decision of revocation, the contract award decision;
  • restricted procedure: the call for tender documents, the non-authorization for participation, the invitation to submit a tender, other declarations within the time limit for tenders, the elimination of a tender, the decision of revocation, the contract award decision;
  • negotiated procedure: the call for tender documents, the non-authorization for participation (only within the negotiated procedure with prior publication); the invitation to submit a tender, other declarations during the negotiation phase/within the time limits for tenders, the elimination of a tender, the decision of revocation, the contract award decision;
  • competitive dialogue: the call for tender documents, the non-authorization for participation, the invitation for participation, the non-consideration of a solution during the dialogue stage, the conclusion of the dialogue stage, the invitation to submit a tender, the elimination of a tender, the decision of revocation, the contract award decision;
  • innovation partnership: the call for tender documents, the non-authorization for participation, the invitation to submit a tender, other declarations during the negotiation phase/within the time limits for tenders, the elimination of a tender, the decision of revocation, the contract award decision.

Decisions that cannot be appealed separately may be appealed only in combination with the following separately appealable decision.

• Review of separate appealable decisions:
  • ten days, 15 days respectively in case of postal mail (§ 343 (1) BVergG),
  • ten days in case of direct procurements (§ 343 (2) BVergG).
• Review of call for tender documents, participation documents and design contest documents:
  • up to seven days before expiration of time, if the time limit exceeds 17 days and the procurement documents are available electronically (§ 343 (3) BVergG).
• The failure to observe these time limits leads to preclusion.

• The standstill period starts with the announcement of the contract award decision and expires after ten days, 15 days in case of postal mail (§ 144 (1) BVergG).
• The same periods apply to the contracting authority in case of a revocation (§ 150 (4) BVergG).

Depending on whether the contracting authority is attributable to the federal government or a province (Bundesland), the following appeal body is competent:

• at the federal level: the Federal Administrative Court (Bundesverwaltungsgericht) (§ 327 BVergG),
• at the provincial level: the Regional Administrative Courts (Landesverwaltungsgerichte).

• Overall charges are contingent on the type of procedure used (§ 340 (1) BVergG):
  • up to EUR 12,960 in case of public supply and public service contracts above thresholds,
  • up to EUR 38,892 in case of public works contracts above thresholds.
• The fee for a combined interim injunction amounts to 50% of the respective overall charges.
• The (possibly only partially) successful applicant’s fee may be reimbursed; the same applies if the applicant is held harmless (§ 341 BVergG)

• A review application does not have a suspensive effect under Austrian public procurement law.
• A successful application for an interim injunction prevents a contract from being concluded before a decision has been reached by the Administrative or Regional Administrative Court (§ 350 BVergG)

• On a federal basis, § 356 (10) BVergG provides the possibility for the imposition of fines by the Federal Administrative Court in case the Court refrains from declaring the contract ineffective: the maximum limit is 20% of the contract value (10% in the case of a below-limit procedure). Alternative sanctions vary among the provinces.
• In case of a “sufficiently qualified” violation of the BVergG, a tenderer may be entitled to compensation from the contracting authority.
• The application period is in general six months from the applicant becoming aware or having the opportunity to become aware of the award of the contract (respective exceptions to be noted).

• Substantial modifications of contracts are not possible. A modification is considered substantial when it renders the contract materially different in character from the one initially concluded.
• Substantial modifications are especially:
  • Any modification that introduces conditions which, had they been part of the initial procurement procedure, would have allowed for the admission of candidates other than those initially selected or for the acceptance of a tender other than that originally accepted or would have attracted additional participants to the procurement procedure;
  • Any modification that changes the economic balance of the contract in favour of the contractor in a manner not provided for in the initial contract;
  • Any modification that considerably extends or reduces the scope of the contract;
  • A new contractor replacing the contractor initially awarded the contract by the contracting authority except in certain cases of reorganization.
• Non-substantial modifications are:
  • Modifications with a value below the thresholds according to question 2 and below 10% for public service and supply contracts or 15% for public works contracts. This modification may not alter the overall nature of the contract;
  • Modifications provided for in the initial procurement documents in clear, precise and unequivocal review clauses, or options, provided that they do not provide for modifications that would alter the overall nature of the contract;
  • Replacing the contractor by a new contractor as a consequence of either (i) an unequivocal review clause or option complying with the above-mentioned criteria, or (ii) universal or partial succession into the position of the initial contractor following corporate restructuring, provided that (a) this does not entail other substantial modifications to the contract, (b) this is not aimed at circumventing the law, and (c) the new contractor fulfils the criteria for qualitative selection initially set out by the contracting authority;
  • Additional works, services or supplies by the original contractor have become necessary and were not included in the initial procurement where (i) a change of contractor cannot be made for economic or technical reasons (e.g., requirements of interchangeability and interoperability with existing equipment, services or installations procured under the initial procurement) and would cause significant inconvenience or substantial duplication of costs for the contracting authority, (ii) any increase in price does not exceed 50% of the value of the original contract; (this does not apply in the sector area). Modifications that exceed the thresholds according to question 2 must be published in TED;
  • if the need for modification has arisen from circumstances that a diligent contracting authority could not foresee and (i) the modification does not alter the overall nature of the contract, (ii) any increase in price of each modification (provided that consecutive modifications are not aimed at circumventing the law) does not exceed 50% of the value of the original contract (this does not apply in the sector area). Modifications that exceed the thresholds according to question 2 have to be published in TED.

• E-Procurement is mandatory for awarding contracts above the thresholds according to question 2, except for social and other specific services and concessions.
• Exemptions from e-procurement occur:
  • where, due to the specialised nature of the procurement, the use of electronic means of communication would require specific tools, devices or file formats that are not generally available or supported by generally available applications;
  • where file formats suitable for description of the tender applications cannot be handled by any other open or generally available applications or are under a proprietary licensing scheme and cannot be made available for downloading or remote use by the contracting authority;
  • where the use of electronic means of communication would require specialised office equipment that is not generally available to procurers;
  • where using non-electronic communicative means is necessary either because preventing a breach of electronic communication security or providing the high level of protection necessary for particularly sensitive information cannot be guaranteed by electronic tools and devices that are either generally available to economic operators or can be made available to them by alternative means of access.
• Requests to participate, offers and projects in design contests have to be signed with an advanced e-signature; tender documents and contract notes, only in certain cases.