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Austrian Review System

Austrian Review System. Contents. Organisation Interim Measures Review Procedures Ascertainment Procedures Appeals. 1. Organisation. Relevant Legal Acts. Article 14b of the Austrian Constitution ( Bundes-Verfassungsgesetz – B-VG)

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Austrian Review System

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  1. Austrian Review System Michael Sachs, Austrian Review System Moskow, March 2011

  2. Contents • Organisation • Interim Measures • Review Procedures • Ascertainment Procedures • Appeals Michael Sachs, Austrian Review System Moskow, March 2011

  3. 1. Organisation Michael Sachs, Austrian Review System Moskow, March 2011

  4. Relevant Legal Acts • Article 14b of the Austrian Constitution (Bundes-Verfassungsgesetz – B-VG) • Public Procurement Act – PPA (Bundesvergabegesetz 2006 - BVergG, BGBl I 17/2006; recently amended by BGBl I 15/2010) • Regulations • procedure of information transfer in connection with publications (BGBl II 36/2006) • publication media (BGBl II 300/2006) • remuneration of external members of the FPPO (BGBl II 5/2007) • thresholds (BGBl II 125/2009) • fees of FPPO (BGBl II 72/2010) • 9Federal State laws on review procedures Michael Sachs, Austrian Review System Moskow, March 2011

  5. Public Procurement Act • entered into force 1st of February 2006 • last amendment came into force 5th of March 2010 • 6 chapters • General Provisions • Tendering Procedures for Contracting Authorities • Tendering Procedures for Contracting Entities • Reviews • Monitoring (European Commission) • Final provisions Michael Sachs, Austrian Review System Moskow, March 2011

  6. Review Authorities • specialized authorities • first instance • Federal Public Procurement Office – FPPO • 9 regional public procurement review authorities – RPPRA • appeals • Constitutional Court (Verfassungsgerichtshof – VfGH) • Administrative Court (Verwaltungsgerichtshof – VwGH) • courts • Regional Courts (Landesgerichte – LG) • Courts of Appeal (Oberlandesgerichte – OLG) • Supreme Court (Oberster Gerichtshof – OGH) Michael Sachs, Austrian Review System Moskow, March 2011

  7. Review System Court of Justice of the European Union procurement procedure Administrative Court Constitutional Court Supreme Court FPPO, RPPRA: review, interim measure FPPO, RPPRA: ascertainment courts: review of concessions, damages award of contract Michael Sachs, Austrian Review System Moskow, March 2011

  8. Organisation FPPO – I • new organisation since September 2002, amended in 2006 • currently 14 senates • each senate consists of • one chairman • independent like judges • appointed for a period of five years or lifetime • two associated judges • independent like judges • appointed for five years • reappointment possible • plenary meeting • allocation of duties • rules of internal procedure Michael Sachs, Austrian Review System Moskow, March 2011

  9. Organisation FPPO – II Michael Sachs, Austrian Review System Moskow, March 2011

  10. Powers FPPO • interim measures • annulment of decisions of the contracting authority • ascertainment • damages • nullification of contract already concluded • nullification of withdrawals of procurement procedure • withdrawal of procurement procedures in cases contracting authority does not continue the procedure properly Michael Sachs, Austrian Review System Moskow, March 2011

  11. 2.Interim Measures Michael Sachs, Austrian Review System Moskow, March 2011

  12. Interim MeasuresAim • prevent damages until decision of review • prevent contracting authorities from creating unchangeable facts • ensure effectiveness of review procedure Michael Sachs, Austrian Review System Moskow, March 2011

  13. Interim MeasuresRequirements • applicationfor interim measure • already possible before review proceedings initiated • possible damages • interestsof applicant prevailing over interests of contracting authority • proposed measure Michael Sachs, Austrian Review System Moskow, March 2011

  14. Interim MeasuresProcedure • parties: applicant and contracting authority • notificationof contracting authority • effect of notification in case of application to forbid contracting authority to • open the tenders, • withdraw the procurement procedure, • award the contract or • conclude the framework agreement the contracting authority must not do so until FPPO rules on the application • opinionsof both parties • comprehensive duty to provide information • usually no oral hearing Michael Sachs, Austrian Review System Moskow, March 2011

  15. Interim MeasuresDecision • chairmanof a senate • within 7 working days • consideration of interests • interim measures • adequate • least possible means • time • fixed time or • until end of review procedure • voidif against interim measure • contract concluded • withdrawal • framework agreement Michael Sachs, Austrian Review System Moskow, March 2011

  16. 3. Review Procedures Michael Sachs, Austrian Review System Moskow, March 2011

  17. Separately Voidable Decisions • separately voidable decisions defined by law • purpose: dividing procurement procedures into sections containing all other decisions since the last separately voidable decision • reviews only within defined short time limits • if time limit passes without a review, decisionscannot be voided anymore Michael Sachs, Austrian Review System Moskow, March 2011

  18. Separately Voidable DecisionsOpen Procedure separately voidable decisions tender notice,tender documents other decisions before submission of tenders decision to withdraw rejection of tenders contract award decision opening of tenders evaluation of tenders preparation, submissionof tenders find best tender award of contract contract concluded procurement procedure execution of contract Michael Sachs, Austrian Review System Moskow, March 2011

  19. Application for NullificationRequirements • interest in entering into a contract • petition for nullification of a separately voidable decision • illegality of decision • damage Michael Sachs, Austrian Review System Moskow, March 2011

  20. Application for NullificationNecessary Content - I • exact designation of • procurement procedure and • 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 Michael Sachs, Austrian Review System Moskow, March 2011

  21. Application for NullificationNecessary Content - II • damage • offended right • reasons for infringement • application for nullification • information about timeliness Michael Sachs, Austrian Review System Moskow, March 2011

  22. Application for NullificationInadmissibility • not against a separately voidable decision • not within the given time limits • fees not paid Michael Sachs, Austrian Review System Moskow, March 2011

  23. Fees • fees depend on • type of procedure • object of procurement • estimated value of the contract • fees range from € 208 to € 5.188 • adapted every year depending on index Michael Sachs, Austrian Review System Moskow, March 2011

  24. Rates of Fees • 100 % for first application for nullification or ascertainment • 50 % of the fee for application for interim measures • 25 % for nullification of tender documents, application to participate or design contest document • 80 % for each application for nullification or ascertainment if there has been a review procedure concerning the same contract award procedure before • if contract lot and below thresholds fee for that lot only • return of • 50 % if application withdrawn before appointment of oral hearing • 20 % if application withdrawn after appointment of oral hearing Michael Sachs, Austrian Review System Moskow, March 2011

  25. Ruling • dismiss because application is incomplete or inadmissible • reject because application is unfounded • nullify decision if • violation of the right claimed as being offended by a decision of the contracting authority, and • essential importance for the outcome of the award procedure • decision within 6 weeks Michael Sachs, Austrian Review System Moskow, March 2011

  26. Refund of Costsby Contracting Authority • refund of fees if applicant wins at least partly • fees for application for interim measures • fees for application for nullification • costs eg external expert • no other costsrefunded eg attorneys Michael Sachs, Austrian Review System Moskow, March 2011

  27. Procedure - I • proceedings following General Administrative Procedural Act (Allgemeines Verwaltungsver-fahrensgesetz 1991 – AVG), additional provisions • parties • applicant • contracting authority • in cases of decision of award of contract tenderer to be awarded • other tenderers who are against the nullification of application • deciding body: senate consisting of 3 members Michael Sachs, Austrian Review System Moskow, March 2011

  28. Procedure - II • publication of review procedure in the internet • collecting facts • prepared by chairman of senate • duty to give all information for all parties of the procedure • all kinds of proves admissible: documents, witnesses, experts, … • hearing of evidence in front of senate Michael Sachs, Austrian Review System Moskow, March 2011

  29. Procedure - III • oral hearing • in general • on application of parties or by decision of FPPO • withdrawal only with consent of all other parties • publication in the internet • no oral hearing in accordance with Article 6 of the European Convention of Human Rights • reject the petition for nullification • procedural decision • decision without further procedure on the ground of the documents possible Michael Sachs, Austrian Review System Moskow, March 2011

  30. 4. Ascertainment Procedures Michael Sachs, Austrian Review System Moskow, March 2011

  31. Damages • cases • after end of procurement procedure by award of contract or withdrawal • contracting authority does not continue procurement procedure • illegality determined by FPPO in ascertaining ruling • ascertainment of FPPO • necessary for claim before civil court • exception: not necessary for action for damages caused by withdrawal of contract out of an earlier mistake of the contracting authority • award of damages by civil court Michael Sachs, Austrian Review System Moskow, March 2011

  32. AscertainmentAfter the Award of the Contract – I • due to violation of PPA awardnot been made in accordance with specification of tender documents on basis of tender with lowest price or technically and economically most favourable tender (“best tender”) • on application of contracting authority: applicant had no real chance of winning the contract Michael Sachs, Austrian Review System Moskow, March 2011

  33. AscertainmentAfter the Award of the Contract – II • procurement procedurewithoutprior publication or call for competition • award of contract without contract award notice • award of contract on the basis of a frameworkagreement or a dynamic purchasing system unlawful • FPPO has to • declare contract ineffective or • cancel contract • order alternate penalties Michael Sachs, Austrian Review System Moskow, March 2011

  34. AscertainmentAfter the Withdrawal of the Contract • withdrawal unlawful • on application of contracting authority: applicant had no real chance of winning the contract • withdrawal without withdrawal notice • declare withdrawal ineffective Michael Sachs, Austrian Review System Moskow, March 2011

  35. AscertainmentContracting Authority Inactive • time limit for award passed • tenderer asks for continuation of procedure • contracting authority does not continue procurement procedure • ascertainment • effect: withdrawal of procurement procedure Michael Sachs, Austrian Review System Moskow, March 2011

  36. Petition for Ascertainment Necessary Content – 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 awardedwith the contract • factsincluding interestin entering into the contract Michael Sachs, Austrian Review System Moskow, March 2011

  37. Petition for Ascertainment Necessary Content – II • damages • offended right • reasonsfor infringement • certain demand • information about timeliness Michael Sachs, Austrian Review System Moskow, March 2011

  38. Petition for AscertainmentInadmissibility • timeliness • not within 6 weeks from date of knowing of award or withdrawal • not within 6 months from date of award or withdrawal • all other cases • 6 months • 30 days if • contracting authority informed tenderers and candidates concerned of the conclusion of the contract • contracting authority published contract award notice • infringement could have been claimed in nullification proceeding • fees not paid Michael Sachs, Austrian Review System Moskow, March 2011

  39. AscertainmentProcedure • procedure same as nullification • members of deciding senate same as nullification • ruling binding civil courts Michael Sachs, Austrian Review System Moskow, March 2011

  40. AscertainmentDecision - I • dismiss because petition is incomplete or inadmissible • reject because application is unfounded • ascertainment • costs Michael Sachs, Austrian Review System Moskow, March 2011

  41. AscertainmentEffects of Decision • necessary for claim for damages • withdrawal of procurement procedure • ineffectiveness of contract or withdrawal • cancellation of contract Michael Sachs, Austrian Review System Moskow, March 2011

  42. Ineffectiveness of ContractIntention • bring contract back on the market • no advantages of illegal behaviour for contracting authority and tenderer • but • still need of contracting authority? • still plans of contracting authority? • still budget of contracting authority? • no guarantee for a new procurement procedure Michael Sachs, Austrian Review System Moskow, March 2011

  43. Ineffectiveness of Contract Cases • ascertainment that procurement procedure without prior publication or call for competition unlawful • ascertainment that awardof contract without contract award noticeunlawful • ascertainment that award of contract on the basis of a framework agreement or a dynamic purchasing systemunlawful Michael Sachs, Austrian Review System Moskow, March 2011

  44. Ineffectiveness of Contract • in general ineffectiveness of contract • no application, ex officio together with ascertainment • consequences:retroactive cancellation of contractual obligations • above thresholds compulsory • below thresholds if evident illegality of acts of contracting authority Michael Sachs, Austrian Review System Moskow, March 2011

  45. CancellationPerformance • cancel performance for part of the contract • no application necessary • goods, services, works cannot be returnedor can only be returned with a loss of value • extent of cancellation • obligations still to be performed • goods, services, works can be returnedwithout loss of value Michael Sachs, Austrian Review System Moskow, March 2011

  46. CancellationDuration • finish contract earlier • application of contraction authority • balancing of interests • contracting authority: keep obligations • applicant: ineffectiveness of contract • public interests Michael Sachs, Austrian Review System Moskow, March 2011

  47. No CancellationAbove Thresholds • concerns ineffectiveness • applicationof contracting authority • overriding reasons relating to a general interest in maintaining contract • economic interests only in exceptional cases if disproportionate consequences Michael Sachs, Austrian Review System Moskow, March 2011

  48. No CancellationBelow Thresholds • concerns ineffectiveness andcancellation • applicationof contracting authority • balancing of interests • contracting authority: keep obligations • applicant: ineffectiveness of contract • public interests Michael Sachs, Austrian Review System Moskow, March 2011

  49. Alternative Penalties • no ineffectiveness of contract • cancellation • contract remains • compulsory • penalty • “effective, proportionate and dissuasive” • up to • above thresholds 20 % of value of contract • below thresholds 10 % of value of contract • taking into account • severityof infringement • extenuating circumstances according to § 5 Verbandsverantwortlichkeitsgesetz (Penal Code for Companies) • extent of keeping contract Michael Sachs, Austrian Review System Moskow, March 2011

  50. Ineffectiveness of Withdrawal • applicationof tenderer • balancing of interests • contracting authority: finish procurement procedure • applicant: continue procurement procedure • public interests Michael Sachs, Austrian Review System Moskow, March 2011

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