PUBLISHING RIGHTS
Public procurement law in Austria
There is hardly any other area of law where there is as much uncertainty as in public procurement law. On the one hand, this is due to the fact that public procurement law (as a codification of enforceable legal claims) is relatively young; the first relevant regulations were only introduced by the Federal Procurement Act. Secondly, Austrian public procurement law has been revised at short intervals in recent years (1993, 1997, 2002, 2006, 2018); each of these amendments has resulted in a significant increase in the volume of standardisation material:
- BundesvergabeG 1993: 108 paragraphs and 11 annexes
- Federal Procurement Act 1997: 130 paragraphs and 18 annexes
- Federal Procurement Act 2002: 192 paragraphs and 10 annexes
- Federal Procurement Act 2006: 351 paragraphs and 19 annexes
- Federal Procurement Act 2018: 382 paragraphs and 21 annexes (+BVergVS + BVergKonz)
And finally, Austria has the "luxury" of a highly fragmented public procurement control system: nine public procurement control authorities in the federal states (state administrative courts, at best with upstream arbitration boards), the Federal Administrative Court, the Constitutional Court, the Administrative Court and the Supreme Court. In addition, there is the European Court of Justice's power of cognizance and the European Commission's review options. In view of this complexity, it is not surprising that error-free procurement procedures are rare.
In our specialist area of public procurement law and procurement, we work on this problem: we know the loopholes and pitfalls of the Federal Procurement Act 2018 as well as the EU legal framework; we take responsibility and are liable for it. Together with contracting authorities or sector clients, we draw up tender documents and support procurement processes - from market exploration to the contract notice to the award/revocation. We enable bidders to challenge discriminatory tender provisions, submit error-free bids even in the face of a formally strict procurement regime and maintain their chances of winning the contract. And: In proceedings before the public procurement control authorities, we fight for the rights of our clients - whether for clients or bidders. This constant commitment to public procurement law - and a genuine enthusiasm for this area of law - not only results in expertise and responsibility, but also in standard works of public procurement law literature.
Our legal advice and representation in public procurement and procurement law includes the following activities:
- Overall supervision of procurement procedures on the client side (monitoring of the market investigation and expert cost estimate, prevention of preliminary work problems, preparation and review of tender documents, risk management, drafting of the service contract, handling of bidder enquiries and any corrections, management and support of negotiation rounds and clarification meetings, preparation of the necessary documentation, support and advice to the evaluation committee, notification of the award or revocation decision, award or revocation);
- Overall support of tendering procedures on the bidder side (evaluation of notices, review of tender documents, risk management, support of the tendering procedure, support of negotiation rounds and clarification meetings, preparation of the necessary documentation);
- Conducting procurement control proceedings on the client side (arguments against the issuance of an interim injunction, representation in review and declaratory proceedings);
- Conducting procurement control proceedings on the bidder's side (arguments for the issuance of an interim injunction, representation in review and declaratory proceedings);
- Challenging decisions of the public procurement control authorities before the Constitutional and/or Administrative Court;
- Representation in civil proceedings for damages following unlawful awards;
- Expert opinions and studies on a wide range of public procurement law issues;
- In-house seminars for the training of procurement law knowledge on the client or bidder side.
Our experts for public procurement law:
SHMP Schwartz Huber-Medek Partner Rechtsanwälte GmbH
Hohenstaufengasse 7
A-1010 Vienna
tel: +43.1.513 50 050
fax: +43.1.513 50 05-50
office@shmp.at