In Austria, tender review competencies (procurement-specific legal protection) are split up between the Federal Government (Bund) and the nine Provinces (Länder). If contracting authorities are mainly controlled or financed by the Federal Government, the legislation and the enforcement of tender review law is up to the Federal Government. If contracting authorities are mainly controlled or financed by one of the nine Provinces, the respective Province is competent for the legislation and the enforcement of the tender review law. Thus, depending on the individual contracting authority awarding a contract either the Federal Administrative Court (Bundesverwaltungsgericht, BVwG) or one of the nine Administrative Courts on Province level (Landesverwaltungsgericht, LVwG) are responsible for the respective tender review procedure.

In transposition or the Remedy-Directive 2007/66/EC, Austrian procurement law sets out three main types of legal review proceedings: the review procedure (Nachprüfungsverfahren), the interlocutory procedure (Verfahren über einstweilige Verfügungen) and the declaratory procedure (Feststellungsverfahren) as a prerequisite for damages procedures at civil courts.

In the case of breaches of public procurement law, an applicant or bidder might be entitled to compensation for the cost of the bid and the cost of participating in the procurement procedure or its interest in the contract (lost profit). In order to successfully claim damages the breach of procurement law has to be verified in a declaratory procedure at the Administrative Court upfront. The civil courts are then competent to decide damage claims.

However, it has to be noted that there are many formal conditions for damage claims and that they are very rare because unsuccessful bidders mostly do not want to initiate a risky proceedings against a contracting authority.

As a basic rule Austrian procurement law states that in all other respects, i.e. in particular compensation claims, injunctions, solidarity claims, rights of rescission and design rights existing under other legal provisions shall remain unaffected by the specific procurement legislation and specific tender review competencies.

Procurement disputes are generally heard in front of either the Federal Administrative Court or one of the 9 Administrative Courts on Province level (see above point 8.a.).

On Province-level the legal protection procedures correspond largely to those on Federal-Government-level. There are, however, certain non-compulsory forums for out-of-court dispute resolution on Province-level. As an example in Lower Austria, a voluntary conciliation procedure prior to a review procedure exists; also in Vienna a conciliatory body may be called upon voluntarily in case a person wants to challenge provisions of tender documents; In Carinthia, an Ombudsman for Public Procurement is established also for mediation activities, which is optional as well.

There are different (tight) time requirements for different procedures.

1. Time limits for tender review procedures (and interlocutory procedures):
   1. Requests for revision must be submitted within 10 days (also in the sub-threshold-area). The period begins with the transmission or provision of the (separately contestable) decision or the initial availability of the notice.
   2. In the case of the execution of a direct award, the time limit shall be 10 days from the date on which the applicant has been aware of or had obtained knowledge of the separately contestable decision.
   3. Requests for review of the invitation to bid or the tender documents, in principle, may be submitted no later than 7 days prior to the end of the period for the submission of bids, the time limit for submission of the competition or the period for the submission of applications, provided that this period is more than 17 days.
2. Time limits for declaratory procedures at the Administrative Court:
   1. Applications must be submitted within six months from the date on which the applicant became aware of the award or could have obtained knowledge at the latest.
   2. In case the applicant did not participate in the tender procedure and the contracting authority has published a contract award notice applications must regularly be submitted within 30 days, in case of a ex-ante-transparency notice even within 10 days.

A tender review procedure requires an "interested person" to apply for the review of a "separately contestable decision" of the contracting authority on the grounds of "specified alleged breaches of procurement law" until the award of the contract or until the revocation of the tender procedure. A bidder can therefore only successfully file such a application for review if he can (i) prove interest to (still) be awarded, (ii) specifies an alleged violation of his individual rights resulting from public procurement law provisions and (iii) demonstrate that as a consequence of such violation he might suffer damages (iv) applies for review of a "separately contestable decision" in time and (v) files its application with the competent Administrative Court.

These pre-conditions apply in principle to all three types of legal proceedings (see above point 8.a.).

A review proceeding itself does not affect an on-going procurement procedure. Nevertheless, an interlocutory procedure and the individual interim measures imposed on the contracting authority (e.g. prohibition to award the contract during the tender review procedure) does interrupt the procurement procedure.

If the contract has already been awarded, only a declaratory procedure (Feststellungsverfahren) might be initiated. This procedure can end with the annulment of the contract.

If the review proceeding is successful, the separately contestable decision challenged shall be annulled. The contracting authority is bound to the decision of the Administrative Court when it continues the tender procedure.

If the declaratory procedure is successful, the court shall verify a breach of public procurement laws and might also decide the annulment of the contract or impose a fine on the contracting authority.

At the Federal Administrative Court a decision in a tender review procedure must be made within six weeks from the date of receipt of the application at the latest. On Province-level a tender review procedure shall not take longer than 8 weeks. Please note in this context that there are no effective sanctions in case the Court exceeds these deadlines.

These tight timelines are not applicable to declaratory procedure because they are initiated after the contract is already awarded.

A decision in a interlocutory procedure must be taken without delay, but within a maximum period of 10 days after receipt of the application.

Yes, for transparency reasons and in order to enable not successful bidders to seek legal protection within the applicable tight time limits during a tender procedure, bidders must be notified prior to the award (Zuschlagsentscheidung) “without undue delay”. The procurement contract can only be concluded 10 days after the notification has been issued (after this "standstill period").

Yes, review proceedings are very common in Austria.

No, damage claims are rather rare because unsuccessful bidders mostly do not want to initiate a risky proceedings against a contracting authority.

In Austria there are already thousands of court decisions for tender review procedures dealing with very different questions. Leading decisions are those of the ECJ and a decision of the Constitutional Court resulting in the applicability of Austrian Public Procurement law (in a light version) also for tender procedures below the thresholds of the EU-Directives.