Essential Elements of the Complaint

Request for Review of Public Procurement Procedure

Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 1

Contents

•EU Directives•Austrian Implementation•Practical Necessities

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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 (Dir 2007/66/EC; since 20/12/2009)

•Art 55 – 64 Directive Defence and Security Procurement (Dir 2009/81/EC; since 21/08/2011)

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Purpose of EU Directives

•enforcement of individual rights•of economic operators

•derived from public procurement directives

•no ex offo control of public procurement procedures

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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

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Approach EU Directives I

• who?•interest in concluding the contract•damagecomplaint: 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

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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

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Austrian System

•Bundesvergabegesetz 2006•detailed provisions for applications for•interim measure

•set aside a decision

•ascertainment

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Aim of Interim Measures

•prevent damages until decision of review•prevent contracting authorities from creating

unchangeable facts•ensure effectiveness of review procedure

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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

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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

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Application to Set Aside a Decision II

•damage•offended right•reasons for infringement•application for nullification• information about timeliness

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Inadmissibility

•not against a separately voidable decision•not within the given time limits• fees not paid

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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

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Application for Ascertainment II

•damages

•offended right

•reasons for infringement

•certain demand

• information about timeliness

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Inadmissibility

•not within the given time limits• infringement could have been claimed in

nullification proceeding• fees not paid

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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?

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Necessary Information

•contracting authority + address•procurement procedure• facts• interest in entering into the contract•damage threatening• infringement•timeliness•demandKiev, 19 April 2012 Essential Elements of the Complaint

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Possible Amendments

•contracting authority + address?•procurement procedure?• facts?• interest in entering into the contract?•damage threatening?• infringement?•timeliness?•demand?Kiev, 19 April 2012 Essential Elements of the Complaint

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Manuduction

•applicant not represented by an attorney?•applicant represented by an attorney?

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Thank you for your attention.

Mag. Hubert ReisnerFederal Public Procurement Office

Praterstraße 31, A-1020 WienTel +43 (1) 213 77 – 224

e-mail hubert.reisner@bva.gv.at

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