As from 1 March 2019, contracting entities have to meet the following new reporting and publication obligations introduced under the 2018 Federal Procurement Act (Bundesvergabegesetz 2018 (“BVergG 2018”)):

• Notices and disclosures by means of open government data
• Reporting obligations concerning awarded construction contracts
• Obligation to report statistical information (for the first time as early as at 10 February 2019)

Apart from having the desired effect of increasing transparency, however, these obligations will also mean further formal effort on the part of the contracting entities. But as any violation of these publication and reporting obligations can result in an administrative fine of up to EUR 50,000, contracting entities will be unable to avoid this effort.

New publication obligations

Information regarding the launching of procurement procedures has had to be disclosed in various publication media so far already. What is new as from 1 March 2019 is the requirement to now publish such information by providing certain meta data of core data relating procurement procedures on www.data.gv.at within the scope of open government data.

The obligation essentially also applies to the publication of awarded contracts, framework agreements entered into and the outcome of ideas contests (“disclosures”). Such disclosures have to be published also for call-offs from framework agreements if the contract value is EUR 50,000 or more. The disclosure requirement also applies to subsequent changes to contracts or framework agreements after completion of the procurement procedure.

Contracting entities on the federal level are required to also disclose all awards of sub-threshold contracts where the contract value is EUR 50,000 or more, which means that any direct awards of contracts exceeding that threshold have to be disclosed. The 2018 Federal Procurement Act does not require contracting entities falling within the regional authorities’ scope of enforcement to disclose sub-threshold contracts.

Reporting obligations concerning construction contracts

If construction contracts or lots of a construction contract amounting to more than EUR 100,000 are awarded, certain information has to be reported electronically to the construction site database of the Construction Workers’ Vacation and Severance Payments Fund (Bauarbeiter- Urlaubs- und Abfertigungskasse).

Apart from the contractor details, the information to be reported includes, above all, the amount of the contract, the subject of the contract and the subcontractors stated in the tender. The reporting obligation must be complied with immediately after the contract was awarded (i.e., not at the time of call-offs from framework agreements). Subcontractors which were not designated in the tender but are commissioned later have to be reported separately. The report has to be made immediately after the contracting entity approved commissioning the additional subcontractor.

Statistical reporting obligations

Certain statistical statements of the contracts or prizes awarded by each contracting entity have to be drawn up by 10 February of each year (and thus for the first time by 10 February 2019). Federal contracting entities have to communicate this statistical information to the Federal Minister of Justice whereas on the regional level, the recipient is the Regional Government.

The reportable information includes, but is not limited to, the number of above-threshold procedures, the number of participating SMEs and the number of contracts awarded to SMEs, the aggregate value of the sub-threshold contracts and competitions.