Legal protection regarding public procurement in Upper Austria

The Oö. Vergaberechtsschutzgesetz 2006 [Upper Austrian Act on Legal Protection regarding Procurement] (Oö. VergRSG 2006) governs legal protection against decisions of principals in procedures that are subject to regulations under federal law in the field of public procurement (procurement procedure) that are within the enforcement jurisdiction of the State in accordance with Article 14b para. 2 line 2 B-VG.

In this context, the Oö. Landesverwaltungsgericht [Upper Austrian State Administrative Court] is (on request) responsible for the performance of review processes, for the issuance of preliminary injunctions and for the performance of determination processes.

Request for review:

Until the contract award and/or until the notice of revocation, entrepreneurs may apply for a review of a separately challengeable decision of a principal in the procurement procedure due to unlawfulness (Sec. 3 et seq. Oö. VergRSG 2006).

The mandatory contents of an application for review are set forth in Sec. 5 Oö. VergRSG 2006.

The State Administrative Court shall declare null and void a decision by a principal that has been taken during a procurement procedure and that is separately challengeable if such decision was unlawful and if such unlawfulness has essential influence on the outcome of the procurement procedure.

Application for the issuance of a preliminary injunction:

At the request of an entrepreneur, the State Administrative Court shall, by means of a preliminary injunction, order temporary measures that seem necessary in order to eliminate or prevent any damage to the interests of the applicant that has occurred or is imminent as a consequence of the alleged unlawfulness of a separately challengeable decision (Sec. 8 et seq. Oö. VergRSG 2006)

Applications for the issuance of a preliminary injunction shall meet the content requirements as mandatorily prescribed by Sec. 8 para. 2 Oö. VergRSG 2006.

Application for determination:

In the course of a determination procedure, an entrepreneur may after the conclusion of a procurement procedure apply for a clarification to ascertain whether such procurement procedure has been faulty (Sec. 12 et seq. Oö. VergRSG 2006).

A precondition for this is that there was an interest in the conclusion of a contract subject to the provisions under public law in the field of public procurement and that due to the alleged unlawfulness damage has occurred or is imminent.

An application for determination is not permissible if claims regarding the alleged breach could have been raised in the course of a review process.

The required contents of a determination application are set forth in Sec. 14 of the Oö. VergRSG 2006.

The periods for submitting applications for review are set forth in Sec. 4 Oö. VergRSG 2006, for preliminary injunctions in Sec. 8 Oö. VergRSG 2006 and for determination procedures in Sec. 13 Oö. VergRSG 2006.

The deadlines for decisions are stipulated in Sec. 20 Oö. VergRSG 2006.

State Administrative Court of Upper Austria,

Volksgartenstraße 14, 4021 Linz

General extension number (+43 732) 7075 - 0

Information centre (+43 732) 7075 -18004

Fax (+43 732) 7075 - 218018

Review process:

The State Administrative Court shall promptly disclose on the internet that it has received a not obviously impermissible application for review. Such disclosure shall contain the designation of the principal and the procedure affected, the designation of the separately challengeable decision contested and a reference to the preclusion consequences.

The review application has, in general, no suspensory effect.

Parties in the review process are, in any case, the applicant and the principal as well as those entrepreneurs whose legally protected interests could be infringed by the decision sought by the applicant.

The State Administrative Court shall hold an oral hearing upon request or, if deemed necessary by it, on an ex officio basis.

Issuance of a preliminary injunction:

Applications for a preliminary injunction seeking to prevent a contract from being awarded, a declaration of withdrawal or non-opening of tenders shall have a suspensory effect from the time of receipt of a notice that the application has been received until the decision on the application has been rendered. 

Parties in the procedure for the issuance of a preliminary injunction are the applicant and the principal.

A public oral hearing does not have to be held.

By means of a preliminary injunction, the entire procurement process or individual decisions of the principal can be temporarily suspended until a decision on a potential annulment has been taken or other appropriate measures can be ordered. The preliminary injunction is enforceable with immediate effect.

A contract awarded contrary to an order in a preliminary injunction is absolutely void and/or ineffective.

Determination procedure:

Parties in a determination procedure are the applicant, the principal and any awarded party.

The State Administrative Court shall only determine whether there were any legal infringements if the unlawfulness had essential influence on the outcome of the procurement procedure.

The State Administrative Court shall hold an oral hearing upon request or, if deemed necessary by it, on an ex officio basis

Signature of the applicant or a (legal) representative authorised by them or qualified electronic signature.

In principle, applications for legal protections shall contain the information determined as necessary contents in each case. (Sec. 5, 8 and 14 Oö. VergRSG 2006).

Furthermore, the State Administrative Court shall be provided with any information necessary for the fulfilment of its duties and all documents required in this context shall be presented. 

No information available/appropriate

For applications within the meaning of the Upper Austrian Act on Legal Protection regarding Procurement, the applicant shall pay a lump sum fee in each case. The amount of the fees is determined in the Oö. Vergabe-Pauschalgebührenverordnung 2014 [Regulation on Lump Sum Fees in Procurement] and depends on the specific procedure. In accordance with Sec. 1 para. 1, the following fee rates apply:

No information available/appropriate

A complaint may be filed against decisions of the State Administrative Court with the Verfassungsgerichtshof [Constitutional Court] and/or an extraordinary appeal can be lodged with the Verwaltungsgerichtshof [Higher Administrative Court].

A complaint vis-à-vis the Constitutional Court shall be directly

filed with the latter, an appeal vis-à-vis the Higher Administrative Court with the Landesverwaltungsgericht Oberösterreich [State Administrative Court of Upper Austria]. A complaint and/or appeal must be drawn up and filed by an authorised lawyer. A submission fee of EUR 240 is payable for the complaint and/or appeal in each case.

Upper Austrian Act on Legal Protection regarding Procurement 2006

Upper Austrian Regulation on Lump Sum Fees in Procurement 2014

Bundesvergabegesetz 2018 [Federal Procurement Act]

EAP - Point of Single Contact Upper Austria
eap@ooe.gv.at

No form required.

For general information on data protection, see the Privacy page of Upper Austria:

Responsible for the content: Abteilung Gebäude- und Beschaffungs-Management
Last update: 15.02.2021