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Court requests greater transparency for award decisions

publiziert: 
International Law Office, Projects & Procurement, 2011, August
Datum: 
1. August 2011
Mag. Irene Mayr

Under Article 21 of the EU Public Procurement Directive (2004/18/EC), a relatively relaxed public procurement regime applies to so-called ´non-priority services´ (ie, service contracts listed in Annex II B of the directive and Section 141 of the Federal Public Procurement Act). In particular, the communication of the award decision for non-priority services must contain neither a summary of the characteristics and relative advantages of the winning tender nor the name of the successful tenderer or the award sum, as stipulated in Section 131 of the act for public contracts in general (implementing Article 2a of the EU Remedies Directive (89/665/EEC) in connection with Article 41 of the Public Procurement Directive). This is because Section 131 of the act does not apply to non-priority services.

An award decision without reasons hinders bidders in filing a persuasive appeal with the competent review authority. Consequently, for services other than non-priority services, the Administrative Court held in its permanent jurisdiction that the absence of reasons in the communication of the award decision is such a severe infringement of the public procurement regulations that the award decision must be annulled by the competent review authority. Non-transparent award decisions without reasons were accepted only with respect to non-priority services.

In a landmark decision of March 16 2011 (confirmed by a ruling on May 31 2011), the Federal Public Procurement Office held that even 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 and relative advantages of the winning tender, the name of the successful tenderer and the award sum, regardless of the fact that Section 131 of the act (which provides that the award decision must contain this information) does not apply to non-priority services.

The office argued that under the general principle of efficiency of remedies in EU law, a bidder that plans to appeal against an award decision must have access to the information necessary to analyse the chances of an appeal; otherwise, the filing of a reasoned application for annulment of the award decision would be impossible, and access to effective legal protection would thus be excessively restricted. Further, the office ruled that Article 2a of the Remedies Directive (setting forth that any award decisions must include reasons) applies to all types of public contract and therefore also to those for non-priority services.

Article 41 of the Public Procurement Directive - which specifies the types of information that must be communicated with the award decision (Article 2a of the Remedies Directive requires only that reasons be included, while Article 41 of the Public Procurement Directive sets out the type of information to be contained in the award decision) - does not apply to non-priority services. However, the office ruled that this did not matter, as the general principle of efficient legal protection requires that a bidder be provided with all necessary information for filing an appeal. Such necessary information is - according to the office - the information specified in Article 41 of the Public Procurement Directive and Section 131 of the act, which, as a consequence, must be applied analogously for award decisions for non-priority services. Consequently, an award decision for the award of non-priority services must contain the same information as any other communication of the award decision.



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