More than four years after the entry into force of the new EU Public Procurement Directive, more than two years after the deadline for transposition and more than one year after publication of the first transposition draft, the time has come. Following the resolutions of the Council of Ministers and the Federal Council, it can be assumed that the Federal Procurement Act 2018 will enter into force by July 2018.
Almost one year after the two-year transition period of the EU directives on public procurement law expired, Austria published a consultation draft of the new Federal Procurement Act 2017 to implement the directives. While Austria took a somewhat conservative approach when implementing the directives, there are some areas where the Austrian draft for the transposition of the directives is significantly stricter than the directives themselves.
The Federal Administrative Court recently addressed whether the party to a winning project in a conflict procedure was entitled to claim rights in the environmental impact assessment for the inferior project. The court ruled that, on the one hand, the legal standing of a party in a conflict procedure is not strictly restricted to that procedure. On the other hand, the court found that being party to a conflict procedure does not guarantee unlimited legal standing in the approval procedure of the other project.
The regulation increasing the Procurement Act's thresholds has been extended for a further two years. Thus, contracting public authorities can continue to benefit from the significantly wider application of the direct award procedure and the so-called 'restricted procedure without prior publication' until 2018. However, contracting authorities should be aware that the Treaty on the Functioning of the European Union may still require an ex ante notice for contracts of a certain cross-border interest.
The two-year transition period for implementing the new EU directives on public procurement recently lapsed. While the majority of member states have at least partially implemented the directives, Austria has yet to pass draft legislation transposing any of them. However, despite this, the directives (at least in significant parts) already apply in Austria and individuals can – either directly or indirectly – rely on the majority of the provisions therein.
The Ministry of Finance has issued a regulation in order to implement provisions for the establishment of state-owned infrastructure guarantee corporations (BUPI). The regulation sets out more detailed provisions on government guarantees for infrastructure projects, as well as the nature, scope of and procedures governing such guarantees. A guarantee provided by a BUPI may cover infrastructure, political and default risks, among others.
Saudi Arabia is currently attempting an ambitious reorientation of its economy. The Saudi Arabian Vision 2030 and the National Transformation Programme 2020 comprise the most comprehensive strategy shift in Saudi Arabian economic policy since oil was found in the country. The Saudi Arabian Vision 2030 and the National Transformation Programme 2020 are expected to ease existing restrictions and liberate the market, in order to foster development of a domestic defence manufacturing industry.
In a recent decision, the Seventh Circuit joined the Eighth, Ninth and Tenth Circuits in holding that the federal disadvantaged business enterprise (DBE) programme is constitutional on its face because it serves the compelling government interest in remedying a history of discrimination in highway construction contracting. With four appellate courts approving of the constitutionality of this federal DBE programme, should non-DBE specialty subcontractors be worried?
According to a recent budget speech, the government has abolished the private finance initiative (PFI) for future projects. Given its complexity, political sensitivity and knife-edge financial arrangements, it is hardly surprising that the PFI has proved to be so problematic and it is highly unlikely that anyone will be sorry to see it go. However, the question remains as to what will replace it.
The Court of Appeal recently handed down its long-awaited judgment in Faraday Development Ltd v West Berkshire District Council. Overturning a fully reasoned first-instance judgment, the court deemed a development agreement containing contingent obligations on the developer to carry out development to be a 'public works contract' as defined in the public procurement rules. The decision has important potential ramifications for public and private development projects.
The economic difficulties faced by local government have never been far from the headlines in recent months. Central government is encouraging the public sector to look at potential savings in operational long-term contracts. Potential areas for savings include, among other things, removing or rescoping soft services. In some cases, it may represent better value for money to remove such services from a contract. These services could be delivered by the local authority or be subject to a separate procurement exercise.
The courts have ruled that a successful tenderer which raises unreasonable objections to an application to vary a confidentiality ring in a public procurement dispute may be liable for the claimant's costs of the application, even though it's not a party to that dispute. The decision means that successful tenderers wanting to object to the use and adaptation of confidentiality rings in procurement challenges should consider carefully the extent to which they should raise objections.