Tag Archive for: Law Firm Success

Symbolbild: Gerichtsurteil über erfolgreichen Einspruch gegen Ausschluss im Vergabeverfahren

Successful challenge: Federal Administrative Court overturns unlawful exclusion from award procedure!

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Wrongful exclusion from a procurement procedure? The Federal Administrative Court has set aside the decision to exclude our client from the procurement procedure!
Successful challenge of an award decision before the Federal Administrative Court (BVwG).

Have you been wrongly excluded from a public procurement procedure? Do you or your company feel discriminated against in a public procurement procedure because the contracting authority wrongly denies you professional reliability?
If you are looking for a specialized law firm in procurement law that has already successfully taken action against incorrect procurement decisions, you have come to the right place. We regularly advise clients on procurement law and publish in specialist journals. You can find more about our procurement law publications under Publications. We pay particular attention to questions of bidders’ legal protection:
Our law firm recently successfully defended a client against unlawful exclusion – with complete success!
On November 21, 2024, the Federal Administrative Court ruled in favor of our client in case W606 2299837-2.

The case in question – What happened?

Our client had applied for a public contract (framework agreement for the delivery of hardware and software) from a large Austrian sectoral contracting authority. The contracting authority excluded our client’s bid without giving it the opportunity to comment on the reason for the exclusion or to prove “self-cleaning”.
The deadline for submitting requests to participate had not yet expired. Our client addressed questions regarding the tender documents to the contracting authority (sectoral contracting authority), which the contracting authority failed to answer. The contracting authority – in this case a sectoral contracting authority – denied our client access to the procurement platform and thus effectively excluded her from any further communication.

The decision – What did the BVwG decide?

The FAC found that the contracting authority had violated public procurement principles by not giving our client the opportunity to respond to its allegations and thus denying “self-cleaning”.

“Self-cleaning” to restore (allegedly) lacking professional reliability

Public contracts should only be awarded to appropriately qualified, authorized and reliable companies. Professional reliability can be lost, for example, through antitrust violations, violations of the obligation to pay social security contributions, violations of the provisions of the Wage and Social Dumping Prevention Act (LSD-BG) or of the provisions of the Foreign Nationals Employment Act (AuslBG). Austrian public procurement law (BVergG 2018) provides for the possibility of “self-cleaning” in the event of an alleged deficiency (Section 83 BVergG 2018).

“Self-cleaning” in the procurement procedure

A contracting authority is obliged to confront the candidate or tenderer with the alleged reasons for the lack of reliability before exclusion or a decision to eliminate them. The candidate or tenderer must have the opportunity to comment on these allegations and to provide evidence of self-cleaning measures.
If a candidate/tenderer can prove that they have taken specific technical, organizational, personnel-related or other measures to avoid future violations, they can provide the contracting authority with corresponding evidence in response to the allegations. The contracting authority must review these.
In this case, the contracting authority did not give our client the opportunity to comment on the assumption of a lack of professional reliability and to provide evidence of self-cleaning measures. This led to the annulment of the exclusion decision.

The outcome – What are the legal consequences of the BVwG’s decision?

Our client was able to participate in the further procurement procedure. The contracting authority had to set a new deadline for the submission of requests to participate and grant our client access to its procurement platform.
This means that candidates have the right to correct defects accepted by the contracting authority before exclusion or to provide clarifications to prove their professional reliability!
Have you also been wrongly excluded from a procurement procedure?

The relevance of the decision for you and your company

An erroneous exclusion has serious consequences for the competition that public procurement law is supposed to promote. Not every contracting authority acts in accordance with the law – a challenge can be worthwhile!
Our law firm specializes in public procurement law and has already successfully conducted numerous review proceedings against erroneous procurement decisions.

Make an appointment now for an initial consultation.

Opioid Maintenance Treatment: Success before the Constitutional Court

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Constitutional Court Annuls Removal of a Doctor from the List of Doctors Authorized to Provide Opioid Maintenance Treatment Due to Violation of the Prohibition of Arbitrariness

The constitutional problem: regulation of opioid maintenance treatment, strict (and unclear) documentation requirements for doctors

The new calendar year 2024 begins for the law firm with a successful and delightful decision by the Constitutional Court: a doctor who was authorized to provide opioid maintenance treatment and registered on the list of doctors authorized to do so was removed from the list of doctors authorized to provide opioid maintenance treatment by the responsible health authority (Municipal Department 40). The health authority had concerns about the documentation and administration practice. As this is a sensitive and, in the public interest, highly regulated area, doctors who are authorized to carry out opioid maintenance treatment are subject to comprehensive documentation obligations, which, however, are not conclusively and precisely regulated in the applicable laws (Narcotic Substances Law, Narcotic Drugs Ordinance, etc.). In several places, only “comprehensible documentation” is mentioned. The law (Narcotic Substances Law) and the Narcotic Drugs Ordinance alone do not clearly state when documentation is sufficiently comprehensible.

The constitutional solution: comprehensive duty of investigation and justification on the part of the health authority, consideration of the circumstances of the individual case

In the present case, the Constitutional Court took up our argument in particular that measures were taken in connection with the COVID-19 pandemic to provide sufficient treatment and opioid maintenance treatment for people requiring treatment. The Constitutional Court agreed with this argument and came to the conclusion that the health authority (Municipal Department 40) and the Administrative Court had not sufficiently taken this aspect into account in their decision. The decision of the Administrative Court therefore violated the prohibition of arbitrariness derived from the principle of equality. The decision dated 30 November 2023, E 1435/2023-17, was delivered to us in the middle of last week.

Our expertise in constitutional law for you

With this decision, our law firm is sharpening its profile in the area of public law. The applicable provisions in the Narcotic Substances Law and in the Narcotics Ordinance are regulations governing the exercise of gainful employment for the treating physicians. We thus remain true to our principle of successfully handling special administrative law cases in peripheral areas of public law with the utmost care and diligence. We are happy to familiarize ourselves with special matters (such as here: Narcotic Substances Law and Narcotics Ordinance) in order to achieve economically valuable and also constitutionally important victories for our clients!

With this in mind, we wish you a happy and successful new year 2024!

Please contact us at any time if you would like to have public law issues clarified before administrative authorities, administrative courts and ultimately the Administrative and/or Constitutional Court!

“Die Presse”, legal supplement of April 3, 2023: Coverage of two cases of our law firm

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We are pleased that the Austrian newspaper “Die Presse” covered in the last edition of its legal supplement “Rechtspanorama” (April 3, 2023) two challenging and interesting cases from our law firm, moreover on the same page.

“Cosmetic surgery beats fate” – Supreme Court decision on insurance law after cosmetic surgery

Under the headline “Cosmetic surgery beats fate”, “Die Presse” reports on an interesting insurance law case that our law firm represented through the instances.

The Supreme Court decided on January 25, 2023, 7 Ob 202/22i, on claims of our client for reimbursement of surgical costs for a cosmetic operation by the health insurance. The surgery was necessary as a result of a cancer disease and treatment, but according to the expert had its cause in a previous cosmetic surgery. The case is also interesting in that the client had acuqired a “health insurance policy covering all risks” as defined in Section 11(2)(4) NAG. Based on the interpretation of a liability exclusion, the insurance company refused to cover the surgery costs as consequences of a cosmetic surgery or treatment. The Supreme Court confirmed the legal position of the insurance company in this case. The case provides clarity in the interpretation of the exclusion of liability for “cosmetic surgery and its consequences.”

“Between ‘Tomahawk’ and ‘Zebra'” – Constitutional Court confirms our legal position in name law

On the same page, Mag. Kommenda reports on a success of our law firm before the Constitutional Court, title “Between ‘Tomahawk’ and ‘Zebra’: right to change name strengthened“.

The Constitutional Court ruled on this case in the last session (Constitutional Court, March 14, 2023, E 2363/2023).

In this case we successfully represented a client who wanted to adopt a name he had been using for a long time as his legal name. This case was contested before all instances. The Administrative Court rejected the change of name. Before the Constitutional Court we successfully enforced our client’s wish to change his name. The Constitutional Court qualified the decisions of the lower instances as an interference with the right to private life (Art 8 ECHR).

We enjoy dealing with complex legal problems, preferably related to public law, constitutional law and human rights. Our success before the Constitutional Court in the area of name law has once again confirmed our profile in the context of representation in public law cases.

We look forward to hearing from you if you are confronted with a complex and special legal problem, possibly also in an “unusual” legal matter such as the law of names.