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Amendment introduces new public procurement review bodies

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

The 2012 amendment to the administrative procedural laws, which will enter into force in its main parts on January 1 2014, 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 (at both the federal and provincial level) will be dissolved with effect from the same date.

New administrative courts

The amendment establishes:

  • provincial administrative courts, one for each of the nine Austrian provinces;
  • a Federal Administrative Court; and
  • a Federal Finance Court.

These administrative courts will be responsible for the review of decisions of contracting authorities in tender proceedings, among other things.

The distribution of competencies between the provincial administrative courts and the Federal Administrative Court accords with a constitutional general clause, which regulates these competencies in favour of the provinces. Accordingly, among its other duties, the Federal Administrative Court will review and decide on challenged decisions of the federal public procurement authorities.

In connection with the introduction of these new courts, the existing public procurement review bodies will be dissolved. Therefore, the current public procurement authorities - including the independent administrative tribunals in the Austrian provinces of Tyrol, Vorarlberg, Carinthia, Styria, Lower Austria, Burgenland and Upper Austria, the public procurement review bodies of Vienna and Salzburg and the Federal Procurement Authority - will be replaced by the newly introduced administrative courts with effect from January 1 2014.

Challenges before Supreme Administrative Court

According to the amendment, decisions of the administrative courts as public procurement review bodies can be challenged before the Supreme Administrative Court. However, this court will not be limited to upholding or reversing the challenged decision; since July 1 2012 it has also been entitled to issue a new decision in lieu of a challenged decision. It will be difficult for bidders in tender proceedings to request a decision from the Supreme Administrative Court - under the new regulation, an appeal to the court is admissible only if the subject of the appeal is an important point of law.

Threshold Ordinance extended

With the 2009 Threshold Ordinance, the thresholds for direct awards and restricted procedures without prior notice were raised for the first time - primarily as a result of the economic crisis and with the aim of boosting the economy. Since 2009 the ordinance has been extended each year. The latest amendment to the ordinance entered into force in December 2012 and stipulates that increased thresholds will apply for tender proceedings initiated before December 31 2013. The most popular threshold is that for direct awards. According to the ordinance, such direct award procedures can be chosen for awards for which the estimated contract value is below €100,000, instead of €50,000 as in regular situations.



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