Public procurement law – legal protection

Description

General information about obtaining legal protection in public procurement cases in Tyrol

General information

Since Austria joined the European Economic Area in 1994, public procurement law has developed into an important and partially autonomous area of law.

The three EU Directives of crucial importance to public procurement law (2014/23/EU, 2014/24/EU and 2014/25/EU) have been transposed into Austrian national law as key public procurement rules in the Federal Contracts Act (BVergG) 2018 and the Federal Act on the Awarding of Concession Contracts (BVergGKonz) 2018.

Public procurement rules regulate a plethora of different and sometimes very complex procurement procedures, as well as the substantive provisions applicable to each procurement procedure.

Legal protection is provided at the various levels (federal and provincial) on the basis of the legal protection laws applicable in that area. For the province of Tyrol, these provisions can be found in the Tyrolean Public Procurement Review Act (TVNG) 2018.

In the enforcement jurisdiction of the province of Tyrol, legal protection in procurement law cases is granted by the Regional Administrative Court of Tyrol within the scope of application set out in Section 1 of the TVNG 2018.

The majority of the substantive provisions on public procurement to be examined by the Regional Administrative Court of Tyrol can be found in the BVergG 2018 and BVergGKonz 2018.

It is generally possible for contractors that consider themselves to have been adversely affected by potential breaches of the provisions of substantive procurement law to submit corresponding legal protection claims to the Regional Administrative Court of Tyrol.

Requirements

Until such time as the contract is awarded or a procurement procedure is cancelled, a contractor can submit an application for review if it claims an interest in concluding a contract governed by public procurement law and the alleged unlawful activity has caused, or could potentially cause, damage.

A contractor that has an interest in a contract falling within the scope of public procurement law that has already been concluded may apply to initiate a declaratory procedure, insofar as it has incurred damage or could potentially incur damage as a result of the alleged unlawful activity.

Further detailed rules on the admissibility of applications for review and for a declaratory finding and possible applications for legal protection are set out in Section 9 et seq. of the TVNG 2018 for the review procedure and in Section 18 et seq. of the TVNG 2018 for the declaratory finding.

Deadlines

The deadlines for lodging applications for legal protection are set out in the provisions of Section 10 of the TVNG 2018 for review procedures, Section 15 of the TVNG 2018 for interim measures and Section 19 of the TVNG 2018 for declaratory procedures.

Processing time:

The time limits for making decisions are calculated in accordance with Section 23 of the TVNG 2018.

Procedure

With limited exceptions (e.g. granting an interim measure), public procurement law proceedings before the Regional Administrative Court of Tyrol are conducted in the form of an oral hearing. This means, specifically, that all of the submissions of the parties, the gathering of evidence and any issuance of a decision takes place in an oral hearing (with the parties present) before the court hearing the case.

In principle, a distinction must be drawn between three legal remedies: the review procedure permitted before the contract is awarded (Sections 3 to 17 of the TVNG 2018), the declaratory procedure for the period following the award of the contract (Sections 18 to 22 of the TVNG 2018), and the procedure for granting an interim measure (Sections 15 to 17 of the TVNG 2018).

In review and declaratory procedures, the applicant and the contracting authority are parties to the proceedings. In addition, any prospective successful bidder in a review procedure and any actual successful bidder in a declaratory procedure may be parties to the proceedings. The party status of the aforementioned successful bidders is subject in both proceedings to the lodging of objections.

All three aforementioned proceedings before the Regional Administrative Court of Tyrol are conducted in accordance with the TVNG 2018 and the Proceedings of Administrative Courts Act (VwGVG, in conjunction with the General Administrative Procedure Act, AVG).

The parties are entitled to submit requests for evidence (e.g. interviewing witnesses, obtaining expert reports, carrying out on-site inspections, producing documents, physical evidence and other proof) in order to support the submissions brought.

It is only in proceedings for granting an interim measure that a simplified procedure for taking evidence is used (through prima facie evidence, which must be prepared).

Authentification and signature

A handwritten or electronic signature is required in order to carry out the proceedings.

Required documents

Applications for legal protection must always contain the information specified as necessary in each case. More details about the review procedure can be found in Section 11 of the TVNG 2018, about the declaratory procedure in Section 19 of the TVNG 2018, and about the granting of an interim measure in Section 15 of the TVNG 2018.

In addition, all of the evidence, in particular documents, physical evidence if need be, expert reports and the like, necessary to support the position taken, must be provided or submitted during the proceedings.

Evidence can generally be submitted electronically.

Costs

Under the Tyrolean Public Procurement Fees Ordinance (Tiroler Vergabegebührenverordnung) 2018, a flat-rate fee must be paid to the Regional Administrative Court of Tyrol in order to bring a matter relating to legal protection in public procurement before this Court.

The fees are set as follows:

Direct awarding of contracts EUR 300

Direct awarding of contracts with prior publication of a contract notice – works contracts EUR 1 000

Direct awarding of contracts with prior publication of a contract notice – supply and service contracts EUR 700

Competitive procedure with negotiation without prior publication of a contract notice – sub-threshold works contracts EUR 500

Competitive procedure with negotiation without prior publication of a contract notice – sub-threshold supply and service contracts EUR 400

Restricted procedures without prior publication of a contract notice – sub-threshold works contracts EUR 900

Restricted procedures without prior publication of a contract notice – sub-threshold supply and service contracts EUR 500

Above-threshold works and services concessions EUR 6 000

Sub-threshold works and services concessions EUR 3 000

Other sub-threshold works contracts EUR 3 000

Other sub-threshold supply and services contracts and design contests EUR 1 000

Other above-threshold works contracts EUR 6 000

Other above-threshold supply and service contracts and design contests EUR 2 000

A fee of EUR 30.00 must additionally be paid in accordance with the Ordinance of Federal Minister of Finance on the fee for submissions to the Federal Administrative Court and the Regional Administrative Courts (BuLVwG-EGebV).

In view of the complexity of both the public procurement provisions and of provisions relating to legal protection in public procurement, it is advisable (although not mandatory) to appoint a representative to conduct the proceedings on behalf of the parties. If a party wishes to have other representation (e.g. if they appoint a lawyer), they must bear the costs of this themselves. If successful, the applicant is entitled to reimbursement of the flat-rate fee paid.

When submitting an application for a declaratory finding, an application for legal aid may be submitted if specific financial circumstances apply (see Section 4 of the TVNG 2018).

The fees incurred can be paid electronically via bank transfer.

Go to form

Due to the diversity of complaints and the complexity of public procurement provisions and legal protection provisions, it is not possible to provide a standard form to attach to cases relating to legal protection in public procurement.

For general questions and information, please consult the website of the Regional Administrative Court of Tyrol at https://www.lvwg-tirol.gv.at, with particular reference to the FAQ section.

Competent Authority

Other competent body:
Regional Administrative Court of Tyrol, Michael-Gaismair Straße 1, 6020 Innsbruck, Tel: +43 512 9017 0, Fax: +43 512 9017 741705, E-Mail: post@lvwg-tirol.gv.at

Legal remedies

An ordinary appeal on a point of law and an extraordinary appeal on a point of law (with an application for leave to appeal) against decisions of the Regional Administrative Court of Tyrol are generally admissible before the Supreme Administrative Court. Appeals must be lodged within 6 weeks of notification of the decision of the Regional Administrative Court of Tyrol.

In addition, an appeal against decisions of the Regional Administrative Court of Tyrol can also be brought before the Constitutional Court within 6 weeks of notification of the decision. Any violation of constitutional rights can be addressed by means of this appeal, which must be submitted directly to the Constitutional Court. Parties must have legal representation, as the appeal must be submitted by a lawyer.