Essential Elements of the Complaint

1. Essential Elements of the Complaint Request for Review of Public Procurement Procedure Essential Elements of the Complaint Hubert Reisner

2. Contents • EU Directives • Austrian Implementation • Practical Necessities Essential Elements of the Complaint Hubert Reisner

3. Relevant Directives • Remedies Directive (Dir 89/665/EEC; since 21/12/1991) • Utilities Remedies Directive (Dir 92/13/EEC;since 01/01/1993) • Amendment Remedies Directives (Dir2007/66/EC; since 20/12/2009) • Art 55 – 64 Directive Defence and Security Procurement (Dir 2009/81/EC; since 21/08/2011) Essential Elements of the Complaint Hubert Reisner

4. Purpose of EU Directives • enforcement of individual rights • of economic operators • derived from public procurement directives • no ex offo control of public procurement procedures Essential Elements of the Complaint Hubert Reisner

5. Contents of EU Directives • minimum requirements for • review authorities • review procedures • no details of review procedure • review authorities to be implemented by member states • contracting authority • administrative body • court • review procedures to be implemented by member states: depending on review authority • integration into legal system of member states Essential Elements of the Complaint Hubert Reisner

6. Approach EU Directives I • who? • interest in concluding the contract • damage • complaint: proof interest and damage • for which purposes? • interim measures;complaint: damage threatening • set aside decision; complaint: illegality of decision • award damages; complaint: illegality of procurement procedure, damage • ineffectiveness of a contract; complaint: illegality of conclusion of contract Essential Elements of the Complaint Hubert Reisner

7. Approach EU Directives II • in which cases? • before the award of the contract • avoid damage until decision of review authority • set aside decision • after the award of the contract • award damages • declare contract ineffective Essential Elements of the Complaint Hubert Reisner

8. Austrian System • Bundesvergabegesetz 2006 • detailed provisions for applications for • interim measure • set aside a decision • ascertainment Essential Elements of the Complaint Hubert Reisner

9. Aim of Interim Measures • prevent damages until decision of review • prevent contracting authorities from creating unchangeable facts • ensure effectiveness of review procedure Essential Elements of the Complaint Hubert Reisner

10. Application for Interim Measures • exact designation of • procurement procedure • separately voidable decision • contracting authority • applicant • including fax or electronic address • relevant facts including the prerequisites for application for setting aside a decision • illegality • damage threatening • interim measure • information on timeliness Essential Elements of the Complaint Hubert Reisner

11. Application to Set Aside a Decision I • exact designation of • procurement procedure • separately voidable decision • exact designation of contracting authority including electronic address or fax • facts including interest in entering into the contract; in case of contesting the award decision nomination of economic operator proposed for the award of the contract Essential Elements of the Complaint Hubert Reisner

12. Application to Set Aside a Decision II • damage • offended right • reasons for infringement • application for nullification • information about timeliness Essential Elements of the Complaint Hubert Reisner

13. Inadmissibility • not against a separately voidable decision • not within the given time limits • fees not paid Essential Elements of the Complaint Hubert Reisner

14. Application for Ascertainment I • exact designation of procurement procedure and of decision • exact designation of contracting authority including electronic address or fax • if possible nomination of economic operator awarded with the contract • facts including interest in entering into the contract Essential Elements of the Complaint Hubert Reisner

15. Application for Ascertainment II • damages • offended right • reasons for infringement • certain demand • information about timeliness Essential Elements of the Complaint Hubert Reisner

16. Inadmissibility • not within the given time limits • infringement could have been claimed in nullification proceeding • fees not paid Essential Elements of the Complaint Hubert Reisner

17. Practical Necessities • which information does the review authority need? • which parts of the application can be amended? • does the review authority have to help the applicant – manuduction? Essential Elements of the Complaint Hubert Reisner

18. Necessary Information • contracting authority + address • procurement procedure • facts • interest in entering into the contract • damage threatening • infringement • timeliness • demand Essential Elements of the Complaint Hubert Reisner

19. Possible Amendments • contracting authority + address? • procurement procedure? • facts? • interest in entering into the contract? • damage threatening? • infringement? • timeliness? • demand? Essential Elements of the Complaint Hubert Reisner

20. Manuduction • applicant not represented by an attorney? • applicant represented by an attorney? Essential Elements of the Complaint Hubert Reisner

21. Thank you for your attention. Mag. Hubert ReisnerFederal Public Procurement Office Praterstraße 31, A-1020 Wien Tel +43 (1) 213 77 – 224 e-mail hubert.reisner@bva.gv.at Essential Elements of the Complaint Hubert Reisner