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Austria: New Fees Regime for Public Procurement Review Proceedings
The Fees Regulation for proceedings before the Federal Public Procurement Office (Bundesvergabeamt ‒ BVA), in force since 13 April 2012, entailed a simplification of the fees regime.
However, the Fees Regulation has introduced a new category of increased fee rates and raised the existing rates. At least, the reduced fee rates for certain applications have been maintained. The Fees Regulation also applies to proceedings under the new Federal Law on the Award of Contracts in the Fields of Defence and Security (BVergGVS).
Simplification of the fees regime
The Fees Regulation for proceedings before the BVA 2012 (Fees Regulation) reduced the previously applicable number of fee rates from twelve to seven. In order to achieve this reduction, a uniform fee rate was introduced for direct awards, while the former special rates for the so-called "direct award decisions" were abolished. The number of fee rates was further diminished by the unification of hitherto different fee rates. Accordingly, the rates for the negotiated procedure without prior publication in the sub-threshold area for works, supply and services contracts and for intellectual service contracts and the rates for restricted procedures without prior publication for supply and service contracts were consolidated in a single fee rate.
New fees for new award procedures
The introduction of the "direct award with prior publication of the contract notice" as a new award procedure by the most recent amendment to the Public Procurement Act (PPA), in force as of 1 April 2012, necessitated the fixing of the corresponding fees. Accordingly, the Fees Regulation established such fees in the amount of EUR 500 for supply and service contracts and EUR 1,000 for works contracts. These fees are higher priced than the new fees for the classic direct awards, which amount to EUR 300.
The new Fees Regulation has resulted in a quite considerable increase in fees. For instance, the fees for applications with regard to direct awards were raised from EUR 219 to 300, or by about 37%. The new consolidated fee rate for procurement procedures without prior publication was fixed at EUR 500. All former corresponding special rates were less expensive: The fees for the negotiated procedure without prior publication in the sub-threshold area for works contracts amounted to EUR 438 (the new consolidated rate is 14% higher), for supply and service contracts to EUR 328 (+52%) and for intellectual service contracts to EUR 383 (+31%). Likewise, the former fees for restricted procedures without prior publication for supply and service contracts added up to merely EUR 383 (+31%). Moreover, so-called "other" supply and service contracts in the sub-threshold area were raised from EUR 875 to 1,000 and from EUR 1,751 to 2,000 for above-threshold contracts (both +14%). The increase in charges is also important for works contracts: respective fees for restricted procedures in the sub-threshold area were lifted from EUR 657 to 1,000 (+52%), for "other" works contracts in the sub-threshold area from EUR 2,736 to 3,000 and for works contracts above the thresholds from EUR 5,472 to 6,000 (both +9.6%).
New category of increased fees
Apart from introducing a rise in regular fees (cf above), the Fees Regulation also introduced a new category of – once again – increased fees for proceedings before the BVA in the above-threshold area. Pursuant to the reasoning of the legislator, the hitherto uniform rates resulted in an unjustified disproportion, whereas the PPA stipulates that fee rates must be determined on the basis of objective grounds taking into consideration the relation between the cost of the proceedings and the benefit for the applicant. Thus, in the view of the legislator, it was not justified to apply one and the same fee of EUR 2,000 to a small supply contract and to a supply contract of several hundred million euros. Therefore, applicants must henceforth pay the threefold fee for their applications if the contract value exceeds the threshold values more than tenfold, and the sixfold fee it the contract value is more than 20 times superior to the threshold values. Accordingly, the maximum fee now amounts to EUR 12,000 for supply and services contracts and to 36,000 for works contracts.
Preservation of reduced fees
Under the Fees Regulation, the previous regime of reduced fees for certain applications was preserved. This means that for such applications, only 25% of the regular fees must be paid. These reduced fees apply to applications for the review of the tender documents and the invitation to tender. The reduced fees must also be taken into account when assessing the rates for applications for interim injunctions, for the withdrawal of an application, and for repeated applications. The reduced fees also apply to the new category of increased fees in the above-threshold area, where they amount to merely 10% of the regular fees.
The new Fees Regulation had to be enacted due to the introduction of new award procedures by the PPA 2012. Whereas the reduction in the number of fee rates is to be welcomed, it did not come as a surprise that the legislator seized this opportunity to increase the fee rates themselves. While such a rise may be justified for huge contracts, one can assume that the increase for smaller contracts was instead motivated by Austria’s strained budget situation. However, the legislator at least did not take advantage of the occasion to also revise the reduced fees; in fact, it even made them applicable to the new category of increased fees.