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 Vienna Administrative Court recently ruled on a challenge to a tender conducted by a German centralised purchasing body under German public procurement law. The court concluded that even if the German purchasing body was qualified as a centralised purchasing body, the Austrian complaints mechanism would apply, as the purchasing activities in relation to the Austrian lot were attributable to the Viennese contracting authority.
The Vienna Administrative Court recently ruled on the requirements regarding the level of proof needed to demonstrate grave professional misconduct in relation to public procurement. The court held that a contracting authority need not necessarily wait for a final criminal judgment: if criminal investigations provide grounds for sufficient and precise suspicion, there is no need to wait for an indictment or a court order to institute proceedings.
The Administrative Court of Lower Austria recently confirmed that certain provisions in the new EU directives on public procurement have advance effects. The court ruled that the negotiated procedure set out in the Procurement Act must be interpreted in line with EU Directive 2014/24/EC. Contracting authorities and bidders should thus consider certain mandatory rules and provisions set out in the directives when applying existing regimes.
The government is preparing an amendment to the Federal Procurement Act which will create stricter rules for the award of construction contracts. However, the timing of the amendment is questionable, given that the act will need to be completely revised due to the implementation of three new EU directives, resulting in two procurement law adjustments within only 12 months.
The Administrative Court issued a decision that deals with the degree of detail necessary in relation to the reasons for a certain award decision within public procurement procedures. The court considered it crucial that it be possible for the bidder to file easily a reasoned appeal against the contract award decision without the knowledge of additional, more detailed justification elements.
Following comprehensive reform of the Austrian administrative jurisdiction, the Federal Procurement Authority is due to be replaced by the newly established Federal Administrative Court. This reform also requires amendments to the Federal Public Procurement Act and the Federal Public Procurement Act for Security and Defence. The federal government is thus about to introduce two bills for this purpose to Parliament.
The 2012 amendment to the administrative procedural laws, which will soon enter into force, provides for a comprehensive legislative reorganisation, including the establishment of new types of administrative court at the provincial and federal level. In connection with the introduction of these new courts, the existing public procurement review bodies will be dissolved with effect from the same date.
During the course of an award procedure, it is not unlikely that the contracting authority will be requested to amend the tender documents during the participation or tender period. This can happen for various reasons, but in a large number of cases bidders request amendments because they feel discriminated against by strict requirements set out in the tender documents.
For the first time an Austrian public procurement authority has clarified what enterprises must do in order to be allowed to participate in tender proceedings despite previous misconduct. The regulatory authority's decree shows that absolution from unreliability requires sustainable personnel consequences, and it is not enough simply to take any organisational or technical steps.
A new law was recently published in the Federal Law Gazette, comprising the Defence Procurement Act and the 2012 Amendment to the Federal Public Procurement Act. The Defence Procurement Act includes the introduction of a relaxed regime for the award of contracts below certain thresholds. The amendment includes a new direct award procedure and greater transparency for award decisions.
In a recent landmark decision the Federal Public Procurement Office held that award decisions with respect to non-priority services must now contain the same information as all other such communications. Hence, even in the case of non-priority services, the contracting authority must inform unsuccessful bidders of the characteristics of the winning tender, the name of the successful tenderer and the award sum.
Including: legislation; application of law to entities and contracts; procedures; exclusions and exemptions; remedies and enforcement; changes during and after a procedure.
A new regulation was recently introduced on eligibility to participate in public procurements. Previously, candidates or tenderers that were interested in public tenders had to prove through various documents that they were suitable. Now, in many cases, a so-called 'self-declaration' should be enough to qualify for the assignment. However, the crux is that this kind of declaration is only enough 'fundamentally'.
The amendment to the Federal Public Procurement Act 2006 recently entered into force. The main focus of the amendment is to implement the EU Remedies Directive, which was issued to improve the effectiveness of review procedures concerning the award of public contracts.
Including: Relevant Legislation; Application of Law to Entities and Contracts; Procedures; Exclusions and Exemptions; Remedies and Enforcement; Changes During and After a Procedure.