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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
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 2
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)
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 3
Purpose of EU Directives
•enforcement of individual rights•of economic operators
•derived from public procurement directives
•no ex offo control of public procurement procedures
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 4
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
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 5
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
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 6
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
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 7
Austrian System
•Bundesvergabegesetz 2006•detailed provisions for applications for•interim measure
•set aside a decision
•ascertainment
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 8
Aim of Interim Measures
•prevent damages until decision of review•prevent contracting authorities from creating
unchangeable facts•ensure effectiveness of review procedure
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 9
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
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 10
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
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 11
Application to Set Aside a Decision II
•damage•offended right•reasons for infringement•application for nullification• information about timeliness
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 12
Inadmissibility
•not against a separately voidable decision•not within the given time limits• fees not paid
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 13
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
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 14
Application for Ascertainment II
•damages
•offended right
•reasons for infringement
•certain demand
• information about timeliness
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 15
Inadmissibility
•not within the given time limits• infringement could have been claimed in
nullification proceeding• fees not paid
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 16
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?
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 17
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
Hubert Reisner 18
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
Hubert Reisner 19
Manuduction
•applicant not represented by an attorney?•applicant represented by an attorney?
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 20
Thank you for your attention.
Mag. Hubert ReisnerFederal Public Procurement Office
Praterstraße 31, A-1020 WienTel +43 (1) 213 77 – 224
e-mail [email protected]
Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 21