1. Essential Elements of the Complaint Request for Review of Public Procurement Procedure Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 1

2. Contents EU Directives Austrian Implementation Practical Necessities Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 2

3. 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

4. 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

5. 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

6. Approach EU Directives I who? interest in concluding the contract damage  complaint: 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. Necessary Information 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 18

19. 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

20. Manuduction applicant not represented by an attorney? applicant represented by an attorney? Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 20

21. Thank you for your attention. Mag. Hubert Reisner Federal Public Procurement Office Praterstraße 31, A-1020 Wien Tel +43 (1) 213 77 – 224 e-mail hubert.reisner@bva.gv.at Kiev, 19 April 2012 Essential Elements of the Complaint Hubert Reisner 21