Successful challenge: Federal Administrative Court overturns unlawful exclusion from award procedure!

/in , /by

Wrongful exclusion from a procurement procedure? The Federal Administrative Court has set aside the decision to exclude our client from the procurement procedure!
Successful challenge of an award decision before the Federal Administrative Court (BVwG).

Have you been wrongly excluded from a public procurement procedure? Do you or your company feel discriminated against in a public procurement procedure because the contracting authority wrongly denies you professional reliability?
If you are looking for a specialized law firm in procurement law that has already successfully taken action against incorrect procurement decisions, you have come to the right place. We regularly advise clients on procurement law and publish in specialist journals. You can find more about our procurement law publications under Publications. We pay particular attention to questions of bidders’ legal protection:
Our law firm recently successfully defended a client against unlawful exclusion – with complete success!
On November 21, 2024, the Federal Administrative Court ruled in favor of our client in case W606 2299837-2.

The case in question – What happened?

Our client had applied for a public contract (framework agreement for the delivery of hardware and software) from a large Austrian sectoral contracting authority. The contracting authority excluded our client’s bid without giving it the opportunity to comment on the reason for the exclusion or to prove “self-cleaning”.
The deadline for submitting requests to participate had not yet expired. Our client addressed questions regarding the tender documents to the contracting authority (sectoral contracting authority), which the contracting authority failed to answer. The contracting authority – in this case a sectoral contracting authority – denied our client access to the procurement platform and thus effectively excluded her from any further communication.

The decision – What did the BVwG decide?

The FAC found that the contracting authority had violated public procurement principles by not giving our client the opportunity to respond to its allegations and thus denying “self-cleaning”.

“Self-cleaning” to restore (allegedly) lacking professional reliability

Public contracts should only be awarded to appropriately qualified, authorized and reliable companies. Professional reliability can be lost, for example, through antitrust violations, violations of the obligation to pay social security contributions, violations of the provisions of the Wage and Social Dumping Prevention Act (LSD-BG) or of the provisions of the Foreign Nationals Employment Act (AuslBG). Austrian public procurement law (BVergG 2018) provides for the possibility of “self-cleaning” in the event of an alleged deficiency (Section 83 BVergG 2018).

“Self-cleaning” in the procurement procedure

A contracting authority is obliged to confront the candidate or tenderer with the alleged reasons for the lack of reliability before exclusion or a decision to eliminate them. The candidate or tenderer must have the opportunity to comment on these allegations and to provide evidence of self-cleaning measures.
If a candidate/tenderer can prove that they have taken specific technical, organizational, personnel-related or other measures to avoid future violations, they can provide the contracting authority with corresponding evidence in response to the allegations. The contracting authority must review these.
In this case, the contracting authority did not give our client the opportunity to comment on the assumption of a lack of professional reliability and to provide evidence of self-cleaning measures. This led to the annulment of the exclusion decision.

The outcome – What are the legal consequences of the BVwG’s decision?

Our client was able to participate in the further procurement procedure. The contracting authority had to set a new deadline for the submission of requests to participate and grant our client access to its procurement platform.
This means that candidates have the right to correct defects accepted by the contracting authority before exclusion or to provide clarifications to prove their professional reliability!
Have you also been wrongly excluded from a procurement procedure?

The relevance of the decision for you and your company

An erroneous exclusion has serious consequences for the competition that public procurement law is supposed to promote. Not every contracting authority acts in accordance with the law – a challenge can be worthwhile!
Our law firm specializes in public procurement law and has already successfully conducted numerous review proceedings against erroneous procurement decisions.

Make an appointment now for an initial consultation.

Lawyers’ Ball 2024 – We were there

/in , /by

As every year, Dr. Georg Rihs hosted a small get-together at the law firm’s premises before the Lawyers’ Ball on Carnival Saturday, 10 February 2024, and met colleagues and friends. We then attended the Lawyers’ Ball at the Hofburg Palace in Vienna, which was, as always, a prominent and well-attended event.

The Lawyers’ Ball was an excellent opportunity to meet colleagues and friends away from everyday professional life in a festive and relaxed atmosphere. We are already looking forward to the Juristenball 2025!

Opioid Maintenance Treatment: Success before the Constitutional Court

/in , /by

Constitutional Court Annuls Removal of a Doctor from the List of Doctors Authorized to Provide Opioid Maintenance Treatment Due to Violation of the Prohibition of Arbitrariness

The constitutional problem: regulation of opioid maintenance treatment, strict (and unclear) documentation requirements for doctors

The new calendar year 2024 begins for the law firm with a successful and delightful decision by the Constitutional Court: a doctor who was authorized to provide opioid maintenance treatment and registered on the list of doctors authorized to do so was removed from the list of doctors authorized to provide opioid maintenance treatment by the responsible health authority (Municipal Department 40). The health authority had concerns about the documentation and administration practice. As this is a sensitive and, in the public interest, highly regulated area, doctors who are authorized to carry out opioid maintenance treatment are subject to comprehensive documentation obligations, which, however, are not conclusively and precisely regulated in the applicable laws (Narcotic Substances Law, Narcotic Drugs Ordinance, etc.). In several places, only “comprehensible documentation” is mentioned. The law (Narcotic Substances Law) and the Narcotic Drugs Ordinance alone do not clearly state when documentation is sufficiently comprehensible.

The constitutional solution: comprehensive duty of investigation and justification on the part of the health authority, consideration of the circumstances of the individual case

In the present case, the Constitutional Court took up our argument in particular that measures were taken in connection with the COVID-19 pandemic to provide sufficient treatment and opioid maintenance treatment for people requiring treatment. The Constitutional Court agreed with this argument and came to the conclusion that the health authority (Municipal Department 40) and the Administrative Court had not sufficiently taken this aspect into account in their decision. The decision of the Administrative Court therefore violated the prohibition of arbitrariness derived from the principle of equality. The decision dated 30 November 2023, E 1435/2023-17, was delivered to us in the middle of last week.

Our expertise in constitutional law for you

With this decision, our law firm is sharpening its profile in the area of public law. The applicable provisions in the Narcotic Substances Law and in the Narcotics Ordinance are regulations governing the exercise of gainful employment for the treating physicians. We thus remain true to our principle of successfully handling special administrative law cases in peripheral areas of public law with the utmost care and diligence. We are happy to familiarize ourselves with special matters (such as here: Narcotic Substances Law and Narcotics Ordinance) in order to achieve economically valuable and also constitutionally important victories for our clients!

With this in mind, we wish you a happy and successful new year 2024!

Please contact us at any time if you would like to have public law issues clarified before administrative authorities, administrative courts and ultimately the Administrative and/or Constitutional Court!

Annual Review 2022

/in , , /by

We have taken the turn of the year as an opportunity to review the past year and to recall our team’s successes for our clients.

In order to provide an insight into our wide-ranging and varied activities in the field of public law, we present the most important successes without claiming to be exhaustive.

Tobacco Monopoly Act, Federal Public Procurement Act for Concessions (BVergGKonz 2018).

As a result of our determined intervention for legal certainty and legal protection, the Administrative Court pronounced in 2021 that the Federal Public Procurement Act for Concessions (BVergGKonz) is applicable to the award of tobacco concessions. This landmark decision had (and has) serious consequences for the tobacco monopoly in Austria.

As a result of this decision, we are continuously conducting continued declaratory proceedings under the BVergGKonz 2018 before the Federal Administrative Court and the Constitutional and Administrative Court.

In its ruling of 21 July 2022, Ro 2020/04/0013, the Supreme Administrative Court confirmed our legal position in declaratory proceedings concerning what we consider to be the arbitrary revocation of an invitation to tender and restricted the scope for decision-making by Monopolverwaltung GmbH (MVG) in award procedures, in this case in connection with the revocation of an invitation to tender. In its ruling, the Administrative Court made binding statements on the interpretation of the Tobacco Monopoly Act 1996 (TabMG 1996). We have thus made a further contribution to legal development and certainty, as well as to legal protection in this sensitive area.

In the future, we will continue to vehemently oppose arbitrariness and lack of transparency in the area of the tobacco monopoly!

Civil Service Law

We were able to achieve a very satisfactory result for our client in one, long-standing civil service law case, which had already started in 2017.

With the ruling of 12 July 2022, W246 2210671-1, and W246 2210671-2, the Federal Administrative Court confirmed the application for the correct classification of our client in terms of salary law in the salary scale.

The subject matter of the proceedings was the classification of our client under salary law. Through our representation, we were able to achieve a correct classification for our client by the Federal Administrative Court. The service authority had to pay the difference to make up for the successfully challenged classification. At the same time, we were also able to obtain a statement from the Federal Administrative Court in favor of our client on the preliminary question of permanent service assignment under service law.

Construction Law

In the first quarter we obtained for our client before the Administrative Court the annulment of an order to stop a demolition before the Administrative Court.

The client had started the demolition of a house in Vienna, which had been built before 1 January 1945. With the amendment LGBl 37/2018 to the Building Code for Vienna, the demolition of buildings erected before 1 January 1945 was made subject to a permit requirement. The demolition had been notified as a notifiable measure even before the amendment to the BO f. Vienna came into force. The Viennese building authority (Magistratsabteilung 37) prohibited the demolition by a client after the amendment of the Building Code (BO) for Vienna. The Administrative Court of Vienna confirmed the prohibition notice.

We represented our client up to the Administrative Court. By decision of 15 February 2022, Ra 2020/05/0006, the Administrative Court upheld our appeal and overturned the prohibition notice.

A company had set up quarters for workers on the ground floor of a newly renovated house mainly inhabited by families. The building applicant only reported the structural adaptations in order to circumvent the obligation to obtain a permit and the right of consent of the co-owners.

We successfully represented a number of co-owners and applied for a declaration that the company was obliged to obtain a construction permit and that our clients were parties to the proceedings for the construction permit. In its decision of 23 November 2022, VGW-111/093/7563/2022-22 et al., the Vienna Administrative Court ruled in our favor and stated that the essential construction measures, in particular the change of dedication as a residential quarter, would have been subject to approval.

Settlement law/foreigners’ law/asylum law

In particular, our team successfully assisted numerous clients in the areas of settlement law, residence law, aliens law and citizenship law in its usual experienced manner.

In 2022, we assisted 68 clients in obtaining or extending a residence title in Austria.

In the area of citizenship, we helped 27 clients to enforce a claim for the granting of Austrian citizenship or for the granting of citizenship by notification (Section 58c StbG) for descendants of Nazi persecutees.

We have also not shied away from challenging negative first-instance decisions before the administrative courts and can look back with satisfaction on numerous administrative court decisions in favor of our clients in the past year.

We also have notable successes to our credit before the Supreme Administrative Court in 2022, and in 2022 for example

We consider the lifting of an eight-year entry ban by the Federal Administrative Court shortly before the turn of the year to be a particular success. The complainant, whom we successfully represented, has lived in Austria for decades, is married and has to care for 3 small children. The complainant is currently serving a criminal sentence. Based on our intervention, our position and representation at the hearing, the Federal Administrative Court judged the integration in Austria and the responsibility for the family living in Austria to be more important than the delinquency upon balancing the interests and applying a proportionality test. Deportation of the father and guardian of the family would have had an existential impact on the entire family.

We have also successfully represented clients in numerous administrative criminal proceedings and obtained the termination of the administrative criminal proceedings.

We are happy to share our joy about the successes on our website, so that you can inform yourself about our activities. For eleven years now, we have been working tirelessly and with dedication for our clients.

We would like to thank our clients for their trust and the outstanding commitment of our staff! The picture shows our team, consisting of Dr. Erich Rihs; Michelle Pfeiffer, LL.B. (WU); Erich Rihs, BA; Dr. Georg Rihs; Hannah Scheiring and Sophie Bachner (from left to right).

Please contact us if you have any questions regarding our offers and services. We would be happy to provide you with our expertise and experience to enforce your legal interests.

Merry Christmas and Cheers 2023!

/in , /by

For our Christmas party on 16 December 2022, we had dinner at the Casino in Kärntnerstraße and toasted to the joint successes of our team this year.

Afterwards, we enjoyed the cozy end in the casino and tried our luck in the games.

We are looking forward to new challenges for our team in the New Year 2023! Also in the New Year we will work together and efficiently to the satisfaction of our clients!

Excursion to the Austrian Constitutional Court

/in , /by

Last Monday, we visited the Austrian Constitutional Court (https://www.vfgh.gv.at/index.en.html) as part of our office excursion.

Despite the ongoing summer session of the Constitutional Court, we received a very friendly welcome there. Apart from our legal “daily business”, the interesting and expert lecture by the head librarian, Hon.-Prof. Dr. Josef Pauser, and the subsequent tour were an excellent opportunity for us and our staff to gain a direct and personal impression of the history, the working methods, the representative building and the importance of this Austrian supreme court.

Since we repeatedly submit appeals to the Constitutional Court in the name of and on behalf of our clients, the lecture complements our legal work and will remain a very good memory for us in our regular professional activities, which often include submissions to the Constitutional Court (complaints against decisions and legal norms).

The convivial lunch in the nearby courtyard of the Schottenstift was the pleasant finale of our law firm excursion.