In Austria, the procurement of government contracts is regulated by the Federal Public Procurement Act 2018 (BVergG 2018), the Federal Public Procurement Act for Concessions (BVergGKonz 2018) and the Federal Defence and Security Procurement Act (BVergGVS). On the one hand, the BVergG 2018 implements Directives 2014/24/EU, 2014/25/EU and 2007/66/EC and therefore covers the legal framework for the awarding of public contracts from public entities and entities in the utilities sector; on the other hand, it implements the remedies in Directives 89/665/EEC and 92/13/EEC to secure minimum review standards for the public and utilities sector. Furthermore, the BVergGKonz 2018 transposes Directive 2014/23/EU, thus setting out rules on the awarding of concessions, while the BVergGVS transposes Directive 2009/81/EC, covering procurement procedures in the defence and security sector.

There are also nine Federal State Acts in Austria, which regulate appeal proceedings and declare the State Administrative Courts (Landesverwaltungsgerichte or LVwG) competent to review the decisions of contracting authorities that are attributable to the federal states or municipalities. The BVergG 2018 regulates the procedure for appeal proceedings that fall under the jurisdiction of the federal government, and provides for the jurisdiction of the Federal Administrative Court in Vienna (Bundesverwaltungsgericht or BVwG).

The public procurement regulations generally apply to public procurement procedures for public purchasers, such as the federal government, the federal States, the municipalities and municipal associations (territorial entities). They also cover (all) entities that are controlled, financed or supervised by territorial entities, as well as public entities that have been established for the specific purpose of meeting needs in the general interest, that do not have an industrial or commercial character but do have legal capacity at least in part (ASFINAG, ÖBB, ORF, public hospitals, universities, etc). Associations consisting of one or more public entities are also covered by the BVergG 2018.

The public procurement regulations also apply to contracts awarded by purchasers other than public entities engaging in at least one of the utilities activities pursuant to special or exclusive rights granted by an authority having jurisdiction over them.

The procurement regulations (BVergG 2018, BVergGVS, BVergGKonz 2018) cover award procedures for the procurement of public supply contracts, works contracts/works concessions and service contracts/service concessions. However, the (national) procurement rules only apply if certain thresholds are exceeded; the current threshold is EUR100,000. Contracts below this threshold can be awarded directly without having to follow a specific procedure. In addition, the obligation to initiate an EU-wide tender procedure depends on the respective EU thresholds, the values of which are as follows:

• EUR5.382 million for works contracts/concessions and service concessions;
• EUR215,000 for supply contracts and service contracts;
• EUR140,000 for supply and service contracts awarded by centralised public authorities;
• EUR431,000 for service and supply contracts awarded by utilities; and
• EUR431,000 for service and supply contracts in the defence and security area.

Generally, the BVergG 2018 also applies to the award of contracts to companies from third countries. Therefore, in principle, all companies – regardless of their nationality or country of origin – have the right to participate in public tenders issued by Austrian public entities and entities in the utilities sector. However, the public procurement regulation provides for the possibility to exclude from participation in procurement procedures those bidders who are established in states that are neither party to the WTO Agreement on Government Procurement nor a member of the EEA.

The key obligations under the applicable legislation follow the basic (underlying) principles of public procurement law – namely, the fundamental freedoms under Community Law, and the ban on discrimination on the basis of the principles of free and fair competition and equal treatment of all applicants and tenderers. Therefore, public procurement contracts shall be awarded in transparent proceedings to qualified, capable and reliable contractors at reasonable prices.

Any territorial restriction of the group of participants or a restriction of participation to individual professions is inadmissible. These principles are applicable for all procurement procedures (above and below the thresholds mentioned in 1.3 Types of Contracts Subject to Procurement Regulation) and serve as the main principles and guidelines for the interpretation of the BVergG 2018.

Generally (ie, unless certain exemptions are provided for), any regulated contract award procedure is published in certain publication media.

Public procurement procedures above the relevant EU threshold must be published at EU level through the Publications Office of the European Union by using the standard forms introduced by Regulation (EU) No 2015/1986, which can be found online. The specific notice is advertised in the Official Journal of the European Union (OJEU). In addition to publicity at the EU level, there is also an obligation to advertise public procurement procedures at the national level in Austria.

This obligation applies to public procurement procedures both above and below the EU threshold. Since 1 March 2019, contracting authorities are obliged to announce public procurement procedures via the Open Government Data-model (OGD-model).

However, contracting authorities are free to additionally publish invitations to tender on their homepage or in other media, such as regional newspapers.

Notice Content

Content-wise, contract notices shall include the following minimum information:

• the name, identification number (where provided for in national legislation), address including NUTS code, telephone, fax number, email and internet address of the contracting authority and, where different, of the service from which additional information may be obtained;
• information on where and how the procurement documents are available, the type of contracting authority and the main activity exercised;
• information on whether the contracting authority is a central purchasing body or if any other form of joint procurement is involved, and the CPV codes;
• information on whether the contract is divided into lots, with the NUTS code for the main location of works, supply or services;
• information on the type of award procedure, with justifications, if any, for an accelerated procedure (for open and restricted procedures and negotiated procedures);
• a description of the procurement, including the nature and extent of the works, the nature and quantity or value of supplies and the nature and extent of services, with a description of options, if applicable;
• the estimated total order of magnitude of contract(s);
• the admission or prohibition of variants;
• the timeframe for the delivery or provision of supplies, works or services and, as far as possible, the duration of the contract/framework agreement or dynamic purchasing system;
• conditions for participation, including a list and brief description of eligibility and selection criteria; and
• information regarding the contract award criteria, the bid/tender submission (deadlines, address, language, format, etc), and the name and address of the review body.

Where the contract is divided into lots, the following information shall be provided for each lot:

• CPV Code(s);
• NUTS Code;
• the estimated total order of magnitude of contract(s);
• a description of the procurement, including the nature and extent of the works, the nature and quantity or value of supplies and the nature and extent of services; and
• an indication of whether bids may be submitted for one, more than one, or all lots, and an indication of any limit on the number of lots that may be awarded to any one bidder.

Contracting authorities are entitled to carry out market surveys in the pre-procurement phase with a view to initiating an award procedure. In this context, the contracting authority may, inter alia, consult companies that are potential candidates or tenderers in order to gather ideas for this procedure.

Within the scope of this consultation ("market exploration"), information on the planned award procedure (eg, problem descriptions, schedules) can be disclosed to the above-mentioned companies. This consultation can also be carried out with third parties (independent experts, authorities or other companies). The information obtained can be used to plan and implement the respective award procedure, provided that this does not distort competition or violate the principles of public procurement.

The public procurement legislation generally provides for a closed catalogue of available procurement procedures. (Public) contracts may be awarded through the following options.

Open Procedures

The open procedure is characterised by the fact than an unlimited number of entrepreneurs is publicly invited to submit tenders.

Restricted Procedures

In the case of restricted procedures (with prior publication), any economic operator may request to participate but only candidates invited to do so may submit a tender. In this variant of the restricted procedure, the contracting authority pre-selects a limited number of qualified entrepreneurs (either directly or based on a request to participate) to be directly invited to submit tenders.

As a rule, the contracting authority must not conduct any negotiations in either the open procedure or the restricted procedure.

Negotiated Procedures

In the negotiated procedure with prior publication, applicants selected from an unlimited number of entrepreneurs are publicly invited to submit applications to participate. Based on the evaluation of these applications, a certain number of entrepreneurs is selected and invited to submit tenders. In contrast to the open procedure and the restricted procedure, the full scope of the procurement can be negotiated with the tenderers.

In the negotiated procedure without prior publication, the contracting authority directly invites pre-selected candidates of its choice to submit offers and subsequently negotiates with them on the full scope of the procurement.

Direct Awards

The direct award procedure is an informal award procedure and is characterised by the fact that services, works or products are procured directly from a freely selected entrepreneur. As the case may be, procurement units may also obtain offers or non-binding price information for the purpose of market research prior to issuing a direct award, but there is no obligation to do so. This is intended to meet the practical requirement of being able to obtain comparative offers even for small orders without having to immediately carry out a formal award procedure. It is also possible to obtain only one offer.

In 2012, the direct award with prior notification was introduced in order to provide a largely informal procedure in the sub-threshold area that takes into account the principles of EU law (in particular equal treatment, non-discrimination and the transparency requirement). The direct award with prior notification is a separate, informal procedure, different from the "classic" direct award, in which a service is procured form-free from a selected suitable contractor in return for payment. By contrast, in the case of a direct award with prior publication, contracting authorities are required to publish the main characteristics of the intended procurement activity (eg, the subject of the procedure, selection criteria) at the beginning of the procedure. However, the subsequent procedure is not regulated and can be freely designed by the contracting authority.

Competitive Dialogues

The definition of the competitive dialogue is based on Article 30 (1) and (3), first subparagraph, of the Public Procurement Directives 2014. Accordingly, the competitive dialogue is characterised by the fact that, at the beginning of the procedure, the public contracting authority only has ideas about its needs rather than concrete ideas about the means available to meet these needs. Therefore, in the first phase of the dialogue, it is to be determined which solution or, as the case may be, which solutions are best suited to achieve the objectives of the public contracting authority and only in a second phase should the remaining participant(s) be invited to submit a bid.

The competitive dialogue is designed for awarding complex contracts if the technical solutions or the legal and/or financial makeup of a project cannot be defined sufficiently. The competitive dialogue is conducted in several stages and is comparable to the negotiated procedure. After the pre-selection of tenderers in a pre-qualification phase, selected candidates are invited to define the best solution for the project in several dialogue phases. Candidates submit their final tenders based on the findings elaborated in the dialogue phase.

Electronic Auctions

A contracting entity may also hold an electronic auction to award a contract. The electronic auction can only be applied after a procurement procedure (such as an open or restricted procedure) has taken place. Before proceeding with the electronic auction, the contracting authority shall make a full initial evaluation of the tenders in the course of a procurement procedure.

All tenderers who have submitted an admissible tender shall be invited to participate in the auction simultaneously by electronic means. Bidders can subsequently optimise their offers in several phases.

Framework Agreements and Dynamic Purchasing Systems

Framework agreements are agreements between one or more economic operator(s) and one or more contracting authority(ies), which are characterised by the fact that the contracting authority can obtain services/supplies/works within the framework agreement by initiating one or several call-offs. However, there is no obligation on the part of the contracting authority to actually award any service, supply or works. Framework agreements shall only be concluded after an open, restricted or negotiated procedure has been conducted and the respective bidders have been selected.

Since the dynamic purchasing system is a completely electronic process, an unlimited number of entrepreneurs are publicly invited to submit non-binding declarations for the provision of commercially available services. Subsequently, all economic operators satisfying the selection criteria are invited to submit a bid.

Design and Realisation Contests

Design contests are procedures that serve to provide the contracting authority with a plan or design, particularly in the fields of zoning, city planning, architecture and construction/civil engineering ("design contests"), the selection of which is made by a jury on the basis of certain evaluation criteria with or without awarding prizes ("comparative assessment"). Realisation contests lead to a negotiated procedure in which a public service contract is awarded after a design contest has been held.

Innovative Partnerships

The innovation partnership aims at the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works. Similar to the negotiated procedure, the innovation partnership is structured in successive phases that follow the sequence of steps in the research and innovation process, which may include the manufacturing of the products, the provision of the services or the completion of the works.

As a rule, contracting authorities are generally free to choose between the open procedure and the restricted procedure (with prior publication). The use of all other procedures is subject to certain conditions.

The negotiated procedure with prior publication and the competitive dialogue may generally be applied in the following circumstances:

• if no tenders, suitable tenders or applications have been submitted in response to an open or restricted procedure with prior publication;
• if the services to be provided do not permit the establishment of contractual specifications as required for the award of a contract by open or restricted procedure;
• if the subject of the award procedure is the procurement of innovative or conceptual solutions; or
• if the complexity of the contract requires negotiations.

Procurement procedures without prior publication may only be applied in exceptional circumstances (such as extreme urgency or if the specific contract can only be carried out by a particular contractor for certain reasons, such as technical or artistic reasons) due to the associated lack of transparency.

The direct award of public contracts may only be conducted if the estimated contract value stays below the following thresholds:

• EUR100,000 regardless of the type of contract for the direct award of public contracts;
• EUR130,000 for direct awards with prior publication of public supply and service contracts; and
• EUR500,000 for direct awards with prior publication of public works contracts.

As a rule, all tender documents (including the pre-selection questionnaire, the invitation to tender, the full list of services and the draft contract) shall be freely available, without restriction, after publication of the contract notice.

However, due to the current wording of the law, it is presently unclear whether the contracting authorities are also obliged to grant access to the contract and certain other documents with the contract award notice in two-stage procedures (eg, negotiated procedure with prior publication or restricted procedure with prior publication).

As a rule, contracting authorities shall take into account the complexity of the contract and the time required for drawing up tenders when setting the procedural time limits. In addition, the public procurement regulations provide for certain minimum time limits for the receipt of expressions of interest and tenders. The specific minimum time limit depends on both the specific type of procurement procedure and whether the contract value exceeds or falls below the EU threshold.

Above the relevant EU threshold, the minimum time limit for submitting an expression of interest varies between 15 days (in case of extreme urgency) and 30 days. The minimum time limit for the tender submission varies between ten and 15 days (in cases of extreme urgency) and in regular proceedings between 25 days (restricted procedure and negotiated procedure with prior publication) and 30 days (open procedure).

For award procedures below the EU threshold, shorter minimum time limits apply (eg, 20 days for the submission of tenders in the open procedure).

As a rule, public procurement contracts shall only be awarded to qualified, capable and reliable entrepreneurs at reasonable prices. Therefore, the regulations provide for a catalogue of eligibility criteria that have to be fulfilled by interested parties in order to participate in a procurement procedure – namely, the suitability to pursue the professional activity, economic and financial standing, the technical and professional ability and the reliability/non-fulfilment of exclusion grounds.

The regulations further provide for a closed catalogue of means of proof for the fulfilment of the above-mentioned criteria. The regulation leaves the contracting authority some discretion in determining the means of proof required only with regard to the financial and economic capability.

Contracting authorities may limit (ie, reduce) the number of qualified bidders in two-stage procedures (namely restricted procedures with prior publication, negotiated procedures with prior publication, competitive dialogues and innovation partnerships), based on selection criteria.

Selection criteria must be disclosed in the tender documents and must be objective, non-discriminatory, related to the subject of the contract and proportionate. Usually, certain eligibility criteria are applied, such as the average turnover or previous projects. However, as a rule, the number of qualified suppliers should generally not fall below three.

Once the bids have been submitted, contracting authorities enter the tender evaluation phase, which leads to the award of the contract. When evaluating the tenders, the contracting authority shall evaluate whether the tender complies with all formal requirements (compliance with time limits, signature requirements, etc) and with the qualification and selection criteria (as the case may be).

As a rule, tenders may not deviate from the requirements set forth in the tender documents and the contract award notice. The remaining bids will be evaluated in accordance with the contract award criteria specified in the tender documents and the contract notice.

MEAT

Contracts may generally be awarded based on either the lowest price or the most economically advantageous tender (MEAT). In the latter case, further criteria related to the subject matter of the contract shall be established, such as quality performance criteria, social criteria or environmental criteria.

However, the public procurement regulations generally favour the MEAT principle. A focus on the pure price competition (lowest cost principle) is generally only permissible if the quality standard of the service has been specified in the service description so clearly and unambiguously in technical, economic and legal terms that the submission of comparable tenders at a defined (quality) level is guaranteed.

Furthermore, the procurement legislation provides for a closed catalogue of situations/procedures where the application of the MEAT principle is mandatory. Pursuant to the public procurement legislation, the contract shall be awarded to the technically and economically most advantageous tender in the following situations:

• a contract shall be awarded for the provision of intellectual services that are to be awarded by negotiated procedure;
• a contract shall be awarded where the description of the performance is essentially functional;
• a public works contracts with an estimated value of at least EUR1 million shall be awarded; or
• the contract is awarded by means of a competitive dialogue or an innovation partnership.

Finally, criteria used for the selection or qualification of tenderers may not be used as award criteria.

Selection criteria, qualification criteria and contract award criteria shall be disclosed in either the contract notice or the tender documents. Furthermore, the contract notice and/or the tender documents shall provide information on the relative weighting of the criteria (including potential sub-criteria).

While the procurement regulations do not explicitly provide for an obligation to disclose the evaluation methodology, both the common practice and the relevant case law confirm that the evaluation methodology must be disclosed in the tender documents for reasons of transparency.

Contracting authorities are obliged to notify interested parties who have not been selected for participation in the contract award procedure of the reasons for this decision. The statement of reasons must be sufficiently detailed to enable the unsuccessful bidder to evaluate whether it should initiate appeal/review proceedings. This notification should occur immediately or, at the latest, within one week after an award decision.

Contracting authorities are obliged to inform unsuccessful bidders in writing (email, fax, letter, etc) of the award decision. This information has to provide substantial reasoning (characteristics and relative advantages of the selected tender, characteristics and reasoning why the unsuccessful bidder was not selected, the name of the successful tenderer or the parties to the framework agreement, etc). Furthermore, the notification has to provide information about the end of the "standstill period". However, there is no such obligation to notify if the contract is to be awarded to the only bidder or the only bidder remaining in the award procedure (eg, in the case of a direct award procedure, a negotiated procedures with only one contractor or a framework agreement with only one contractor).

The public procurement regulations provide for a standstill period between the notification of the contract award decision and the conclusion of the contract of at least ten calendar days if the contract award decision is available electronically, or 15 days if the transmission is via postal delivery. As a rule, any contract award granted during the standstill period shall be null and void.

The Austrian public procurement review system involves different authorities on the federal government level and the federal state level. For procurement procedures attributed to the federal government, the competent review body is the Federal Administrative Court (BVwG), while at the state level it is the individual State Administrative Courts (LVwG). Decisions of both the LVwG and the BVwG can be appealed before the Constitutional Court (Verfassungsgerichtshof or VfGH) and the Supreme Administrative Court (Verwaltungsgerichtshof or VwGH) within six weeks after the respective decision has been rendered.

Before the signing of a contract, aggrieved applicants or bidders may apply to challenge specific decisions of the contracting authority and have them declared null and void. The public procurement regulation provides for an exhaustive list of contracting authority decisions against which an appeal may be lodged (such as the contract notice, the tender documentation, the decision to exclude a bidder, the invitation to bid or the contract award decision).

After the signing of the contract, a declaratory procedure (Feststellungsverfahren) may be initiated with the aim of establishing deficiencies in the contested award procedure (declaratory decision) and the annulment of an unlawful direct award, as the case may be. If the contract cannot be declared null and void (eg, due to an overriding public interest), the contracting authority can be fined with a penalty of up to 20% of the contract value.

Aggrieved applicants or bidders may claim damages before the civil courts if the procurement regulations have been infringed and the contracting authority was to blame for said infringement. In principle, the aggrieved companies may claim compensation for the costs of preparing the tender, for participation in a procurement procedure or (alternatively) for lost profits, provided that the bidder would have been awarded the contract if the infringement had not occurred.

However, a declaratory decision by the competent review authority establishing the non-conformity of the procurement procedure/contract award is a mandatory prerequisite and therefore the basis for damage claims before the civil courts. Accordingly, a complainant seeking damages must first obtain a corresponding declaratory decision from the review authority.

Since the challenge of a specific decision of the contracting authority does not stop the specific award procedure, applicants must apply for an interim measure (eg, to suspend the contract award procedure, to suspend the standstill period or to suspend the opening of bids) alongside the respective appeal.

In order to bring a challenge, an applicant must substantiate their interest in concluding the respective contract and provide proof that they have suffered or are in danger of suffering a loss as a result of the alleged infringement of the award provisions. Therefore, an applicant is not entitled to file a challenge if they have no interest in concluding the contract or if they cannot suffer any damage as a result of the allegedly unlawful decision of the contracting authority. Consequently, an enterprise that has not submitted a bid has no standing to challenge the award decision. Furthermore, bidders who have been excluded or who must necessarily be excluded generally have no standing. However, if all other bids would also have to be eliminated and the contracting entity would have to repeat the award procedure, a bidder who has been excluded shall have the right to file an application since in the necessary withdrawal of the procedure it would have a new chance to submit a bid and thus to be awarded the contract.

Interest groups cannot submit an application because they do not act in their own name but on behalf of their members. Furthermore, neither subcontractors nor single members of a bidding consortium have standing to file an appeal. The absence of the right to file an application leads to the rejection of the application.

The time limits for filing a challenge depend on the subject of contestation (tender documentation or another contestable decision of the contracting authority). In general, any separately contestable decision must be contested within ten days after the bidder has become aware of the contested decision. Tender documents shall be challenged no later than seven days prior to the deadline for submitting applications to participate or the bid submission deadline.

The (Federal/State) Administrative Courts generally have to rule on a review application within six weeks of the application being filed. However, in practice, review proceedings take between six weeks and three months, depending on the workload of the respective courts. Procedures aimed at a declaratory decision must be completed within six months of the submission of the respective application.

The average number of procurement claims per year varies significantly depending on the review body.

In 2021, there were 220 review procedures before the Federal Administrative Court in 2021, and 57 public procurement claims filed before the nine State Administrative Courts (Landesverwaltungsgerichte) (approximately six files per State Administrative Court).

The typical costs associated with challenging the decision of an awarding authority depend significantly on:

• the value of the respective contract being tendered;
• the type of award procedure chosen; and
• the competent review body.

Considering these factors, the cost (court fees) for filing an appeal with the court range from EUR324 to almost EUR40,000. The cost of applying for interim measures (preliminary injunctions) is also to be taken into account in the amount of half of the costs for the appeal, while the court fees are to be reimbursed by the unsuccessful party, with each party having to bear its own lawyers' fees.

Pursuant to the public procurement regulations, modifications to a public contract after it has been awarded generally require a new procurement procedure, unless a certain (exhaustively listed) exemption explicitly provides for the possibility to change or extend a contract.

The public procurement regulations provide for the following exemptions that make modifications permissible following the award of a contract:

• the subject and circumstances of the modification are provided in the original tender documents in clearly, precisely and unambiguously worded contract amendment clauses;
• the modification covers additional works, services or supplies by the original contractor that have become necessary and that were not included in the initial tender documents, provided that a change of the contractor cannot be made for technical or economic reasons;
• the modification has become necessary due to circumstances that a diligent contracting entity could not foresee, provided that the modification of the contract does not alter its overall nature;
• a new contract partner replaces the undertaking to which the contracting authority had originally awarded the contract, provided that such change is clearly formulated in the contract or is caused by legal succession (including takeover, merger, acquisition or insolvency), provided that the new contractor meets the initial eligibility criteria;
• the public contracting authority itself assumes the obligations of the main contractor from its subcontractors;
• the modifications are only minor and exceed neither the relevant threshold nor 10% (service and supply contracts) or 15% (works contracts) of the initial contract value; and
• the modification is not materially different to the originally awarded contract, demonstrating the parties’ intention to renegotiate the essential terms of the contract.

The public procurement legislation provides for the possibility to directly award a contract (without prior publication) if the estimated contract value is below EUR100,000. The legislation provides for the possibility to conduct exclusive negotiations with only one entrepreneur in extraordinary situations, such as extreme urgency, if only that specific entrepreneur can provide the required services due to technical reasons or exclusive rights or if the new services consist in the repetition of similar services, and if the contract is awarded by the same contracting authority to the contractor who was awarded the original contract and such a subsequent award has been reserved in the initial tender documents.

2021 Supreme Administrative Court Ruling on the Deadline for Contesting Direct Awards

In its decision of 12 November 2021 (VwGH 12.11.2021, Ra 2018/04/0099-5), the Supreme Administrative Court deduced that mere general references on official notice boards are not sufficient to establish knowledge of an alleged direct award to a contractor. It also held that an entrepreneur is not obligated to make inquiries (eg, by researching the award platforms) nor even to file an application for review as a precautionary measure.

The decision in question was preceded by an award procedure (by way of direct award) concerning a contract for the planning of the construction of a new crèche and the reconstruction of a kindergarten in an Austrian municipality. Within the framework of this procedure, an invitation to a municipal council meeting was published on the official notice board of the Austrian municipality in question for nine days, which contained an agenda item entitled "Resolution on the award of the construction management [for] the extension of the crèche and the new construction of the kindergarten".

Thereupon, an entrepreneur filed several applications for declaratory judgment with respect to this procurement procedure as well as an application for suspensive effect.

The competent Regional Administrative Court rejected all of the contractor's applications as inadmissible on the grounds that the contractor should have filed an application for review because it had already become aware of the planned "direct award" through the published agenda, and an application for a declaratory judgment was therefore inadmissible.

The Supreme Administrative Court held that the invitation to the municipal council meeting in question, as published on the official notice board of the municipality, did indeed contain an agenda with relevant topics. However, the relevant agenda item in the present case did not indicate that a decision was to be made on the award of the planning of the construction project, nor did it contain any information regarding the selected award procedure (direct award). Consequently, the legal conclusion could not be drawn that the entrepreneur in question could have had knowledge of the intended direct award of the planning service through the announced agenda before the resolution on the award of the contract and that it could therefore also have submitted an application for review with regard to the choice of award procedure.

The Supreme Administrative Court therefore annulled the decision of the Regional Administrative Court.

2021 Federal Administrative Court Ruling on Electronic Signatures

In its decision of 10 September 2021 (BVwG 10.09.2021, W131 2243410-2), the Federal Administrative Court annulled the award decision in a two-stage award procedure for the conclusion of a framework agreement for the design, manufacture and supply of double-decker electric multiple units based on the grounds that the winning bidder had used a Swiss eSignature for the electronic submission of its bid and thus had failed to use a qualified electronic signature within the meaning of Regulation (EU) No 910/2014 for the electronic submission of bids in accordance with the requirements of the contracting authority in the tender documents. The bidder had therefore submitted a bid in violation of the tender documents.

The Federal Administrative Court further held that the Swiss signature on the bid in question was not a signature equivalent to the (EU) requirements foreseen by the contracting authority because there is no corresponding agreement on the recognition of a Swiss signature in the EU.

In this context, it is particularly interesting that the defective signature was not the reason for the proceedings before the Federal Administrative Court in the first place, but that this was only ascertained by the competent judge in the course of the oral proceedings and taken up within the scope of his competence to annul decisions of the contracting authority in this respect (Section 347 Paragraph 1 Number 2 BVergG 2018).

Nonetheless, the Swiss company in question has now been awarded the contract for the supply of the double-decker trains following an extraordinary appeal against the above decision of the Federal Administrative Court to the Supreme Administrative Court. The reasons given by the Supreme Administrative Court for this decision can only be speculated upon at present, since the relevant decision has not yet been published.

The current government programme provides, inter alia, for the introduction of eco-social award criteria by 2024, which shall be binding for nationwide procurement. The best bidder principle is also to be extended to include binding ecological criteria for the products and services offered (eg, public construction activity). In addition, the Thresholds Ordinance (Schwellenwerteverordnung) is to be extended and an examination of raising the thresholds is to take place in the interests of promoting the regional and eco-social market economy.

Last but not least, there is currently an ongoing debate concerning certain amendments and clarifications in relation to self-cleaning measures. However, none of these measures have actually been implemented to date.