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Effectiveness of remedies: provision of detailed reasons in award decisions

publiziert: 
International Law Office, Projects & Procurement Newsletter
Datum: 
13. August 2013
Mag Irene Mayr

On April 9 2013 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. Under Section 131(1) of the Federal Public Procurement Act, the contracting authority must verifiably disclose to the bidders remaining in the procurement procedure the identity of the party that will be awarded the contract. In this communication, unless it would be damaging to the public interest, would be detrimental to the legitimate commercial interests of enterprises or would risk impairing fair competition, the remaining bidders must also be informed of:

  • the reasons for the rejection of their tenders;
  • the investment involved in the contracts; and
  • the features and advantages of the successful tender.

With regard to the details of the reasons for a certain contract award decision, the Administrative 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. This is in line with the established case law of the European Court of Justice, which held in Uniplex (C-406/08) that only once a concerned candidate or tenderer has been informed of the reasons for its elimination from the public procurement procedure may it come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings.

However, this does not mean that all justification elements that are missed by the bidders result in the objective illegality of the award decision. Such an understanding would constitute an excessive obligation to state reasons for a certain contract award decision, since the demand to specify reasons could be continued ad infinitum. Therefore, the decision rests on whether it is possible for the bidder to file easily a reasoned appeal against the contract award decision without being aware of additional, more detailed justification elements.



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