2018 Thresholds Regulation expired - new 2023 Thresholds Regulation in the pipeline

The 2018 Thresholds Regulation  (Federal Law Gazette II No 211/2018) expired on 31 December 2022; due to this, the (lower) thresholds originally provided for in the 2018 Public Procurement Act (BVergG) are now authoritative in the individual types of procedures. According to a circular issued by the Federal Ministry of Justice (FMJ) dated 23 December 2022, it remains to be seen whether a general extension of the measures promulgated in the 2018 Thresholds Regulation is necessary. However, the FMJ circular already holds out the prospect of a fixed-term transitional or successor regulation (2023 Thresholds Regulation), to be applicable until 30 June 2023.

Point of departure

So far, several regulations set thresholds which exceeded the values originally set by law in the Public Procurement Act for individual types of procedures (including, without being limited to, direct awards). The applicability of these higher thresholds set by regulations was continuously extended in recent years. However, with the current expiry of the 2018 Thresholds Ordinance on 31 December 2022, there was no (further) extension; as a consequence, the lower thresholds (originally) set forth in the 2018 Public Procurement Act took effect again.

Outlook

The 2023 Thresholds Regulation is to be issued as a successor regulation and will be valid until 30 June 2023. According to the FMJ, the procedure for enacting the 2023 Thresholds Regulation has already been initiated and there is hope that it will be promulgated in the near future.

Such a temporary extension of the measures (i.e. the higher thresholds) until 30 June 2023 would give contracting authorities and entities in various business sectors time to make the arrangements required for planning their procurement projects in case of a negative review and the eventual expiry of the transitional regime.

What does this mean more specifically?

As of 01 January 2023, the lower threshold values stipulated by law in the 2018 Public Procurement Act will therefore apply to the following types of procedures (for the time being):

However, the thresholds for direct awards with prior publication and the thresholds for direct awards with and without prior publication for special services remain unchanged. There will be no changes for award procedures initiated before 01 January 2023, either, as the thresholds of the 2018 Threshold Regulation were decisive for these procedures (at the time of initiation).

Conclusion

As of 01 January 2023, the (significantly) lower threshold values enshrined in the 2018 Public Procurement Act apply. This will in any case remain unchanged until the 2023 Thresholds Regulation – which, according to the Federal Ministry of Justice, is currently being reviewed - enters into force as a transitional regulation to remain in place until a final decision has been taken on a general extension. In any event, it is definitely necessary to bear this circumstance in mind before initiating award procedures.

If you have any questions in this regard or need assistance, the KWR procurement law team will be happy to help.