Public Procurement Law: Technical Contribution on Legal Protection in Continued Proceedings before the Federal Administrative Court (BVwG)

The legal protection of contractors in award procedures under the Federal Public Procurement Act for Concessions (BVergGKonz 2018) is a recurring topic. Therefore, we have dedicated an article to this current and important topic in the December issue of the Journal for Public Procurement Law and Construction Contract Law (ZVB).

In the article, we summarize our experiences and critical reflections on legal protection under procurement law in fortgese declaratory proceedings before the Federal Administrative Court. It is based on a decision of the Administrative Court (VwGH) in a case conducted by us, which supports the legal position of our client in a procurement procedure concerning a service concession under the Tobacco Monopoly Act (TabMG).

The finding of the VwGH and the lack of legal protection in public procurement law

On a regular basis and for quite some time, we have been conducting proceedings before the highest courts of public law (Administrative Court, Constitutional Court) in a specific area. These proceedings concern the awarding of contracts for tobacconists or the conclusion of order contracts for tobacconists under the Federal Public Procurement Act for Concessions (BVergGKonz) and the Tobacco Monopoly Act (TabMG).

In the process, we have found that the legal protection regime under public procurement law contains numerous pitfalls: Even if we have obtained a ruling supporting our legal position for our clients at the Supreme Court, the proceedings before the Federal Administrative Court are continued on the basis of a motion for continuation. The Federal Administrative Court must make a new decision in which it takes into account the legal opinion of the Supreme Court. In practice, this sometimes happens inadequately.

In this article, we point out the existing deficits in legal protection and present possible solutions for the legislature and administrative practice. Furthermore, we provide considerations on the relevance for the following damages litigation.

Our concern: Your legal protection in public procurement law

Our many years of expertise in public procurement law have led us to dedicate a separate article to the topic of legal protection under the Federal Procurement Act and BVergKonz. We would be pleased to represent you in the field of public procurement law in the best possible and well-founded manner. Through our publication activities, for which we draw from our legal practice, we contribute to the development of the law. This is also to the benefit of our clients.

Please do not hesitate to contact us if you wish to examine the legality of a decision made by a public contracting authority (such as the Monopolverwaltung GmbH in the area of the tobacco monopoly, but also others) and contest it.