Austrian case

Decision of the Supreme Administrative Court from 30th of September 2009, AW 2009/04/0030

In Austria, the review body of first instance concerning public procurement procedures of the federal state is the “Bundesvergabeamt”.

With decision from the Bundesvergabeamt on 25th of March 2009 a certain tender procedure concerning cleaning services was declared void.

The federation lodged a complaint against this decision before the Supreme Administrative Court. In principle, proceedings before the Supreme Administrative Court to not have suspense effects, therefore generally spoken at this stage of proceedings the alleged administrative decisions are valid and effective. Suspense effect may be granted by the Court upon special application under given circumstances, listed in Art. 30 of the Administrative Court Act. In this case the complaining federation. It asked the Court to grant suspense effect. It was argued that granting interim relief would not violate mandatory public interests. On the other hand the federation would suffer an unreasonable disadvantage, because without suspense effect the federation would suffer damages deriving from the delay till contracting and from additional costs caused by a new procurement.

Art. 30 para 2 of the Administrative Court Act :
“Upon request of petitioner, however, the Administrative Court is to
issue a court order in favour of the suspense effect, unless it would be
contrary to mandatory public interest and after consideration of all
interests affected, whether the implementation or the use of the license by
a third party, as granted by a ruling, would constitute an unreasonable
disadvantage for petitioner. “