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Guest Post. More innovation and flexibility, shorter procedures: The BVergG 2018 is coming. Schönherr Counsel Johannes Stalzer, who specializes in public procurement law, explains the sometimes serious effects.
More than four years after the entry into force of the "new" EU Procurement Directive, more than two years after the implementation deadline and more than a year after the first draft bill was published, the time has come: the entry into force of the new Federal Procurement Law in Austria in July 2018 is expected. This is indicated by resolutions in the Council of Ministers and the Bundesrat in recent months.
The pace in the final spurt
The previous Federal Public Procurement Act of 2006 will be finally replaced. This marks the beginning of a new era in public procurement law: compulsory electronic procurement, new types of procedures and procurement methods, as well as the compulsory best bidder principle are just a few examples of the numerous innovations that will fundamentally change the procurement process and procurement practice.
Clients and bidders should therefore urgently deal with the new legal framework. Because of the considerable delay in the implementation of the awarding RL is expected after approval of the necessary bodies with an entry into force "from today to tomorrow".
The most important changes and innovations at a glance:
More procurements without public procurement law: The catalog of services whose procurement is not subject to the BVergG will be expanded. In addition to the exceptions for loans and advances, for special legal and notary services as well as for certain rescue services, the extended exemptions for intragroup contracting ("in-house award") and public-public cooperation are of particular practical relevance.
End of (non) priority services: The previous distinction between "priority services" and "non-priority services", which are only partially subject to the BVergG, will be deleted without replacement. In the future, all services will be subject to the full application of the BVergG. Excluded from this are only "special and social services": these include, for example, health and social care services, restaurant and hotel services or various municipal services.
The awarding of such services will be much easier and more flexible in the future due to a higher threshold of EUR 750,000 and largely free choice of procedure and choice. However, the principles and general principles of public procurement law, in particular the principles of equal treatment and non-discrimination, must be respected if the contract has a cross-border interest (ECJ, 19.04.2018, C-65/17).
New & expanded exclusion catalog : The catalog of those reasons, which necessarily lead to the exclusion of applicants / bidders of procurement procedures, is considerably extended: Of special explosiveness for bidders is the necessary exclusion with conflicts of interests, the attempted (!) Undue influence on the client and the Exclusion due to significantly poor performance in the execution of previous orders.
The bad or non-fulfillment of public contracts can thus not only lead to regular contractual consequences, such as damages, penalties or termination. In the future, the exclusion of tenders for the award of future orders must also be expected.
Simplified aptitude test: The new Federal Procurement Law also provides the "only once principle": this means that bidders do not have to submit identical proofs each time anew. This and the compulsory acceptance of the Single European Self-Declaration ("EEE") significantly reduces the burden on businesses related to providing proof of aptitude.
Shortening and simplification of procurement procedures: Particular mention should be made of the significantly shorter minimum periods for participation and tendering in procurement procedures, the easier use of the negotiated procedure, the refusal to open formal tenders in open and restricted procedures and the possible replacement of notices by a prior information.
All these measures will not only simplify the handling of procurement processes, but in some cases drastically shorten them. While an acceleration of the award procedure is of course advantageous for contracting entities, the shortening of the procedure for bidders poses a considerable risk of missing participation, request and, above all, legal deadlines.
Therefore, companies should immediately initiate an economic and legal initial evaluation of the tender dossier when they publish a call for tenders that is of interest to them.
Innovation partnership: Legislators want to promote and strengthen innovative procurement in the future. An essential instrument for this is the innovation partnership. In this process, the research and development process is linked to the subsequent procurement process in a procurement procedure. This should make it considerably easier to carry out innovative procurement projects and enter into cooperation with startups.
Mandatory e-assignment: By 18.10.2018 at the latest, award procedures must be carried out electronically. These include, in particular, electronic communication between clients and companies, the electronic availability / provision of tender documents, as well as the electronic submission of participation documents and offers.
In addition, tender documents must be available in full and free of charge to all interested parties as from the announcement. Contracting entities must therefore make available all documents (from the request to participate to the contract) from the first announcement of the invitation to tender, so that applicants and bidders can get a complete picture of the service to be procured and the terms of the service.
Defusing the compulsory best bidder principle: The strongly discussed best bidder principle is defused: Mandatory the addition to the "economically and technically most favorable offer" therefore essentially only with the use of a functional performance description, with the choice of the negotiated procedure and the innovation partnership, with the allocation of Construction contracts over EUR 1 million, as well as in the award of cleaning and security services.
More flexibility in changing & adapting existing contracts: Without risking a new tender, existing contracts may be adjusted in the future by changing or adapting the subject matter and scope, the remuneration arrangements or even under certain circumstances by changing the contracting party to changing conditions. This brings the necessary flexibility at the stage of order processing and more legal certainty for clients and bidders, especially for long-term and complex procurements.
However, special caution is required when intervening in existing contracts: on the one hand, the permissible exemptions are to be interpreted restrictively and, on the other hand, the BVergG provides for an extremely complex test scheme before a contract amendment can be considered admissible. Errors can lead to the nullity of the contract amendment and to fines.
Extended documentation requirements: In the future, clients in particular should not forget to announce contracts already awarded with an order value of more than EUR 50,000, with extensive information available, at www.data.gv.at and make them available for five years.
Author Johannes Stalzer is public procurement expert and counsel at Schönherr Rechtsanwälte.
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