AUSTRIA: The Federal Administrative Court in Wien on October 3 annulled the direct award to ÖBB of a 15-year contract to operate passenger services in eastern Austria from December 2019.
The court’s decision was welcomed in a statement issued by open access operator Westbahn, which had lodged a legal appeal based on a Prior Information Notice issued in December 2018. This PIN had envisaged ÖBB being given the rights to operate local and regional passenger trains totalling 15·8 million train-km in the Länder of Wien, Burgenland and Niederösterreich.
According to Westbahn, the court had agreed with its petition that the proposal for a 10-year contract with a five-year extension exceeded the 10-year contract term limit for directly awarded contracts set out under the EU’s Fourth Railway Package.
Responding to the verdict, the Federal Ministry of Transport, Innovation & Technology has said that the court had confirmed the validity of its approach to tendering, and that it would now proceed to revise the contracts as 10-year agreements with no scope for further extension.
However, Westbahn argues that the entire procurement process will have to be rerun, not least because the verdict will have implications for the terms of rolling stock procurement. ‘On the basis of the preliminary information of December 2018, no 10-year contract can be concluded with ÖBB-Personenverkehr’, Westbahn said.
Instead, the operator is urging the ministry to issue a series of shorter direct awards of no more than three years, before launching fully competitive tenders for smaller lots covering the various regions.
Westbahn also believes that the court decision has implications for the interim government’s proposed €11bn transport investment programme, of which rail is the prime beneficiary. On September 19, the national parliament approved a budget which would have extended all of ÖBB’s PSO contracts expiring in December via a series of 15-year direct awards.
