Presentation by Hubert Reisner from Austria, at the regional conference organised by SIGMA on Public procurement review bodies, which took place in Ohrid, the former Yugoslav Republic of Macedonia on 9-10 June 2016.

1. © OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Regional Conference
for Public Procurement Review Bodies
in EU Enlargement Countries
The Quality of Decisions
Hubert Reisner
Federal Administrative Court of First Instance, Austria
9 – 10 June 2016, Ohrid

2. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Quality of Decisions
• aim: solve the case in a comprehensible,
reasoned and reasonable decision
• find a procedure, which leads to such a
decision
• consider principle of a fair trial implying
 the right to be heard for all parties of the
procedure
 give reasons for decision
• subject: enforcement of subjective rights
2

3. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Necessary Content of Decision
• give all arguments of the parties
• disclose all evidences
• regard opinions of parties on evidences
• establish the facts of the procedure
• consider evidences reasonably
• applicable law
• subsumption under applicable law
3

4. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Requirements for Procedure
• short time for decision (e.g. 4 to 8 weeks)
• no strict formal obstacles for application for
review
• no restriction to formal judgement of tenders
and procurement procedure
• instead obligation to clarify all facts!!!
• no rejection of applications because
applicant’s tender has to be rejected
• binding decision
4

5. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Review Authority
• independence of all members and staff
• sufficient human resources on all levels like
 judges
 lawyers
 assistants
 access to experts (internal or external)
• sufficient technical resources
 rooms for oral hearings
 electronic files
 electronic communication with parties 5

6. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Necessary Powers
• obligation of all parties and other stakeholders
of the procurement procedure to submit full
information required by review authority
• use all kinds of evidences
 right of the review authority to summon all
witnesses wherever they come from
 gather evidences ex officio
 ask experts
 all other evidences useful in the case
6

7. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Gather Evidences
• subject of the case defined by the application
• all kinds of evidences
• documents of procurement procedure in the
original state!
• get expertise necessary (e.g. finance,
engineering, business administration,
technology, …) from experts
 members of the staff
 experts from outside the review authority
 not members of deciding body! 7

8. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Experts
• experts for the field of evidence is needed
 e.g. Austria list of approved experts
• independent of all parties and authorities
• available; only short time for opinion
• ask experts before determining them
 expertise
 independence
 availability
• ask yourself, will expert stand oral hearing?
8

9. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Involvement of Experts I
• first, be sure of the facts of the case
• precise questions to the expert concerning
evidence only, no legal aspects
• expert determined by the review authority
 hear parties on the person
 hear parties on the questions
 short time limits for statements of parties
• appoint expert, ask questions
9

10. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Involvement of Experts II
• opinion of expert must contain
 question
 material and method
 facts the opinion is based upon
 conclusion from facts based on expertise (opinion)
• hear parties on opinion before oral hearing
• parties may question expert in oral hearing
(expert defends opinion)
• consider all opinions establishing the facts
10

11. AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Writing Decision
• start immediately after oral hearing
• take time for the decision only
• consider all evidences and opinions
• keep in mind
 aim of procurement procedure: find best solution
 avoid sticking to formal issues
 answer relevant questions posed in application for
review
 follow structure to make decision comprehensible,
reasoned and reasonable
11

12. © OECD
AjointinitiativeoftheOECDandtheEuropeanUnion,
principallyfinancedbytheEU
Thank you very much for your attention!
Hubert Reisner
12