Contracts have to be awarded to economic operators that are suitability to pursue the professional activity, have sufficient economic and financial standing and technical and professional ability with regard to the subject-matter of the contract.

With regard to suitability to pursue the professional activity, contracting authorities may require economic operators to be registered in the Austrian Trade register or enrolled in one of the professional or trade registers kept in their Member State of establishment, as described in Annex XI of the Directive.

With regard to economic and financial standing, contracting authorities may impose requirements ensuring that economic operators possess the necessary economic and financial capacity to perform the contract. For that purpose, contracting authorities may require, in particular, that economic operators have a certain minimum yearly turnover, including a certain minimum turnover in the area covered by the contract. In addition, contracting authorities may require that economic operators provide information on their annual accounts showing the ratios, for instance, between assets and liabilities. They may also require an appropriate level of professional risk indemnity insurance. The minimum yearly turnover that economic operators are required to have shall not exceed two times the estimated contract value, except in duly justified cases such as relating to the special risks attached to the nature of the works, services or supplies.

With regard to technical and professional ability, contracting authorities may impose requirements ensuring that economic operators possess the necessary human and technical resources and experience to perform the contract to an appropriate quality standard. Contracting authorities may require, in particular, that economic operators have a sufficient level of experience demonstrated by suitable references from contracts performed in the past.

Contracting authorities shall set out the required conditions of participation which may be expressed as minimum levels of ability, together with the appropriate means of proof, in the contract notice or in the tender documents.

Proof of suitability may, as a general rule, be provided in a facilitated manner, but in tender procedures of classic contracting authorities not by abstract prequalification procedure (to be distinguished from the prequalification phase of an individual tender procedure).

Only in the utility sector an abstract prequalification is a possible tool often used by Utilities.

There is no unified blacklist in Austria. However, bidders might be classified as not reliable in case of a registered breach of the Foreigners' Employment Act (Ausländerbeschäftigungsgesetz - AuslBG) or the Wage and Social Dumping Control Act (Lohn- und Sozialdumping-Bekämpfungsgesetz - LSD-BG). For these breaches lists are kept with the Ministry of Finance (for the AuslBG) and with the Wiener Gebietskrankenkasse (for the LSD-BG). These lists have to be checked by the contracting authorities during the suitability assessment.

Following Art. 57 of Directive 2014/24/EU, Austrian procurement law makes it possible for bidders to self-clean in order to not be excluded from the competition. In this perspective, evidence has to be provided that:

• the bidder has compensated all damages caused by the law infringement or has engaged itself to do so;
• the bidder has actively helped to solve the committed offense; and
• the bidder has taken adequate technical, organisational and personnel-wise measures to prevent future law infringements.

In order to prevent conflicts of interest, a company that was involved in the set-up of a procurement procedure (i.e. drafting of or advising on the tender specifications) can be excluded from said procedure if the involvement of the company in the set-up has led to a competitive distortion that cannot be remediated by other, less incisive measures (e.g. longer deadlines to submit a bid).

As a general rule, bidders can combine to submit a bid and form a bidder consortium ("Bewerber- oder Bietergemeinschaft"). However, the contracting authority may specify restrictions in its procurement documents.

According to Austrian procurement law bidder consortia may submit bids or requests to participate, unless the participation of consortia has been declared inadmissible for objective reasons. The contracting authority may also foresee a limitation of the number of members or the composition of the admissible consortia on the basis of objective reasons.

The contracting authority can not oblige consortia to adopt a specific legal form for the purpose of the tender procedure. But, as a general rule, bidders prefer to establish a consortium in form of a civil partnership (Gesellschaft bürgerlichen Rechts). However, after the award of the contract the contracting authority may require that the consortium assumes a specific legal form if this is required for the proper execution of the contract. If awarded, the members of  the consortium are jointly responsible and liable for the performance of the contractual obligations.

Under Austrian national procurement law a bidder consortium is treated as one individual bidder. Consequently, individual members of bidding consortia are not entitled to file an appeal for review. Only the consortium itself can have a legitimate “interest in the contract”, but not individual members who did not submit an offer and therefore could not be awarded the contract. Bidder consortia have to name all of their members in the submitted bid and nominate one member as the authorised representative for the tender procedure and the potential execution of the contract to be awarded.

The bidding consortium as a whole has to prove the required suitability criteria. Every member of the consortium has to prove individually that it does not fulfil the grounds for an exclusion from the tender procedure (see above under 4 c.). If deemed necessary, the contracting authority may set up specific requirements as to how a bidder consortium provides the proof of suitability and how the contract should be executed by the bidder consortium. Such requirements have to be justified by objective grounds (e.g. the contractual subject-matter) as well as proportionate.

Bidder consortia may be excluded from the tender procedure if the formation of the bidder consortium itself is considered anti-competitive und thus could potentially distort free competition. This might be the case if the participating companies are competitors on the same (tight) market. However, a bidder consortium cannot be excluded on such grounds if the combined bidding is justified. It is up to the members of a bidding consortium to justify this and convince the contracting authority that their consortium does not present grounds for exclusion. In contrast, for companies which are not competitors on the same market it is much easier to form a bidder consortium without raising the general suspicion of a competitive distortion.

Generally speaking, in open tender procedures it is commonly accepted judicial practice that the establishment of bidding consortium or a change in their composition is only permissible until the bid submission. In restricted procedures as well as negotiated procedure with call for competition, a change of the composition or the establishment of a new bidding consortia is generally prohibited after submitting a request for participation and the invitation to bid.

Please note that pursuant to the case Højgaard und Züblin decision of the European Court of Justice dated 24 May 2016 the contracting authorities may exceptionally allow a (alone suitable) member of a prequalified consortium to submit a bid even if the original bidder consortium does not exist anymore. This decision has not been reflected by the national case law, yet.

As a basic rule in Austria, limitations for participation of related bidders in the same procedure apply as long as one entity has substantial influence on more than one bid.

Related bidders are those which belong to the same group or holding or are otherwise related by corporate means. It is refutably assumed that the participation of related bidders in the same procurement procedure with competitive bids is an anti-trust law violation because it is refutably assumed that information relevant for drafting the bids is exchanged between entities of the same group or holding. However, this assumption can be reversed if the bidders succeed to prove that they have taken appropriate measures to ensure that their bids are drafted independently and confidentially. Therefore, the bidders have to disclose:

• if and to what extent the parent company or affiliates may have influenced their bidding;
• if the bidding companies are subjected to a certain group structure/policy which may have influence on their bidding;
• if and on what company level coordination agreements exist;
• if and to what extent technical, organisational and personnel-wise interrelations exist between the companies; and
• if the companies operate spatially divided.

Yes, there are in particular special regulations in place for regulated activities under the Austrian Industrial Code (Gewerbeordnung - "GewO").

For example, according to the Austrian Industrial Code, a foreign company that wants to to participate in a tender procedure for regulated services in Austria (e.g. trade with medical devices) has to notify the Federal Minister of Economics and Labor in writing of the activity prior to submitting the bid at the latest. Otherwise, this service provider would have to be excluded procurement procedure.