Legal protection in procurement cases in Burgenland
Since Austria joined the European Economic Area in 1994, public procurement law has developed into an important and partially autonomous area of law.
The three EU Directives of crucial importance to public procurement law (2014/23/EU, 2014/24/EU and 2014/25/EU) have been transposed into Austrian national law as key public procurement rules in the Federal Procurement Act (BVergG) 2018 and the Federal Act on the Awarding of Concession Contracts (BVergGKonz) 2018.
Public procurement rules regulate a plethora of different and sometimes very complex procurement procedures, as well as the substantive provisions applicable to each procurement procedure.
Legal protection is provided at the various levels (federal and provincial) on the basis of the legal protection laws applicable in that area. For the province of Burgenland, these provisions can be found in the Burgenland Public Procurement Protection Act (VergRSG).
In the enforcement jurisdiction of the province of Burgenland, legal protection in procurement law cases is granted by the Regional Administrative Court of Burgenland within the scope of application set out in Section 1 VergRSG.
The majority of the substantive provisions on public procurement to be examined by the Regional Administrative Court of Burgenland can be found in the Federal Procurement Act (BVergG) 2018 and the Federal Act on the Awarding of Concession Contracts (BVergGKonz) 2018.
It is generally possible for contractors that consider themselves to have been adversely affected by potential breaches of the provisions of substantive procurement law to submit corresponding legal protection claims to the Regional Administrative Court of Burgenland.
Applications for legal protection must always contain the information specified as necessary in each case. More details about the review procedure can be found in Section 5 VergRSG, about the declaratory procedure in Section 19 VergRSG, and about the granting of an interim measure in Section 8 VergRSG.
In addition, all of the evidence, in particular documents, physical evidence if need be, expert reports and the like, necessary to support the position taken, must be provided or submitted during the proceedings.
Evidence can generally be submitted electronically.
The deadlines for lodging an application for legal protection are laid down in Section 4 VergRSG for review procedures and Section 13 VergRSG for declaratory procedures.
Under the Burgenland Public Flat-Rate Fee Regulation (VPG-VO) 2018, a flat-rate fee must be paid to the Regional Administrative Court of Burgenland in order to bring a matter relating to legal protection in public procurement before this Court.
The fees are set as follows:
Direct commissions EUR 219
Direct awards of a contract above the threshold EUR 657
Direct awards of a contract below the threshold EUR 328
Negotiated procedures without prior publication of a contract notice, below the threshold
Works contracts EUR 438
Supply and service contracts EUR 328
Intellectual services EUR 383
Restricted procedures without prior publication of a contract notice, below the threshold
Works contracts EUR 657
Supply and service contracts EUR 383
Other sub-threshold procedures
Works contracts EUR 2 736
Supply and service contracts EUR 875
Works and service concessions EUR 2 736
Other above-threshold procedures
Works contracts EUR 5 472
Supply and service contracts EUR 1 751
Works and service concessions EUR 5 472
The flat-rate fee payable by the applicant for an interim measure is 50% of the fee listed in paragraph 1.
A fee of EUR 30.00 must additionally be paid in accordance with the Ordinance of Federal Minister of Finance on the fee for submissions to the Federal Administrative Court and the Regional Administrative Courts (BuLVwG-EGebV).
In view of the complexity of both the public procurement provisions and the provisions relating to legal protection in public procurement, it is advisable (although not mandatory) to appoint a representative to conduct the proceedings on behalf of the parties. If a party wishes to have other representation (e.g. if they appoint a lawyer), they must bear the costs of this themselves. If successful, the applicant is entitled to reimbursement of the flat-rate fee paid.
When submitting an application for a declaratory finding, an application for legal aid may be submitted if specific financial circumstances apply (see Section 18b VergRSG).
EU Procurement Directive, Directive 2014/23/EU,
EU Procurement Directive, Directive 2014/24/EU,
EU Procurement Directive, Directive 2014/25/EU,
Federal Procurement Act (Bundesvergabegesetz) 2018,
Federal Act on the Awarding of Concession Contracts (Bundesvergabegesetz Konzessionen) 2018,
Burgenland Public Procurement Protection Act,
General Administrative Procedure Act (AVG)
With limited exceptions (e.g. granting an interim measure), public procurement law proceedings before the Regional Administrative Court of Burgenland are conducted in the form of an oral hearing. This means, specifically, that all of the submissions of the parties, the gathering of evidence and any issuance of a decision takes place in an oral hearing (with the parties present) before the court hearing the case.
In principle, a distinction must be drawn between three legal remedies: the review procedure permitted before the contract is awarded (Sections 3 to 7 VergRSG), the declaratory procedure for the period following the award of the contract (Sections 12 to 16a VergRSG), and the procedure for granting an interim measure (Sections 8 to 11 VergRSG).
In review and declaratory procedures, the applicant and the contracting authority are parties to the proceedings. In addition, any prospective successful bidder in a review procedure and any actual successful bidder in a declaratory procedure may be parties to the proceedings. In both proceedings, the party status of those successful bidders is subject to any objections being lodged.
All three aforementioned proceedings before the Regional Administrative Court of Burgenland are conducted in accordance with the VergRSG and the Proceedings of Administrative Courts Act (VwGVG, in conjunction with the General Administrative Procedure Act [AVG]).
The parties are entitled to submit requests for evidence (e.g. interviewing witnesses, obtaining expert reports, carrying out on-site inspections, producing documents, physical evidence and other proof) in order to support the submissions brought.
It is only in proceedings for granting an interim measure that a simplified procedure for taking evidence is used (through prima facie evidence, which must be prepared).
Until such time as the contract is awarded or a procurement procedure is cancelled, a contractor can submit an application for review if it claims an interest in concluding a contract governed by public procurement law and the alleged unlawful activity has caused, or could potentially cause, damage.
A contractor that has an interest in a contract falling within the scope of public procurement law that has already been concluded may apply to initiate a declaratory procedure, insofar as it has incurred damage or could potentially incur damage as a result of the alleged unlawful activity.
Further detailed rules on the admissibility of applications for review and for a declaratory finding and possible applications for legal protection are set out in Section 9 et seq. VergRSG for the review procedure and in Section 12 et seq. VergRSG for the declaratory finding procedure.
Due to the diversity of complaints and the complexity of public procurement provisions and legal protection provisions, it is not possible to provide a standard form to attach to cases relating to legal protection in public procurement.
For general queries and information, please consult the website of the Regional Administrative Court of Burgenland at verwaltungsgericht.bgld.gv.at
see other fields
For written applications (Section 13(1) AVG, including appeals on a point of law, and related submissions, to the Supreme Administrative Court) to be submitted to the Regional Administrative Court of Burgenland, exclusively the following electronic and postal options may be used, pursuant to Section 17 VwGVG in conjunction with Section 13(2) of the AVG:
By post, to the following address: Europaplatz 1, 7000 Eisenstadt
By fax to: +43 (0) 2682 66811-1177
By email to: verwaltungsgericht@lvwg-bgld.gv.at
The application does not need to be authenticated or signed.
An ordinary appeal on a point of law and an extraordinary appeal on a point of law (with an application for leave to appeal) against decisions of the Regional Administrative Court of Burgenland are generally admissible before the Supreme Administrative Court. Appeals must be lodged within 6 weeks of notification of the decision of the Regional Administrative Court of Burgenland.
In addition, an appeal against decisions of the Regional Administrative Court of Burgenland can also be brought before the Constitutional Court within 6 weeks of notification of the decision. Any violation of constitutional rights can be addressed by means of this appeal, which must be submitted directly to the Constitutional Court. Parties must have legal representation, as the appeal must be submitted by a lawyer.
If you encounter technical problems or have any queries about receiving information (completeness, legibility, etc.), please contact the Department by telephone on +43 (0) 2682 66811-1100.
Amt der Burgenländischen Landesregierung [Office of the Provincial Government of Burgenland]
Stabsabteilung Recht – Hauptreferat Allgemeine Rechtsangelegenheiten
Europaplatz 1
7000 Eisenstadt
Tel. +43 57 600
Email: anbringen(at)bgld.gv.at21.02.2023 08:21
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