Section 168b StGB in Austria: procurement agreements, bidder communication, company roles and first steps in WKStA investigations.
Mag. Christopher Angerer, Rechtsanwalt
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Agreements in a procurement procedure can become criminally relevant in Austria when offers are no longer prepared independently. Section 168b StGB concerns competition-restricting agreements in procurement and must be separated from corruption allegations.
This post explains from a legal perspective which communication can be risky, which evidence is usually reviewed and why companies and individuals should analyse their roles separately.
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For Section 168b StGB procurement documents, bidder communication and company roles must be separated.
Where bid rigging in procurement proceedings is alleged, the precise file content matters. Do not explain the facts before you know which act, period and evidence are relied on.
From a legal perspective the first step is file inspection and a structured review.
Several persons may have been involved in decisions, documents or communication. Responsibilities and knowledge must be reconstructed before a statement is made.
From a legal perspective personal conduct and organisational background must be kept separate.
Documents, messages and payment records can be incriminating or exculpatory. They should be secured in their original context and not selectively presented.
The overall picture is decisive.
Before an interview, complaint or data disclosure, the file and the exact allegation should be known. Silence, written response and evidentiary requests are different tools.
Choose the next step only after legal review.
Section 168b StGB concerns agreements that may restrict competition in a procurement procedure. It is not about every form of market cooperation. The link to a concrete procedure and to the offer decision is decisive.
The offence must be separated from bribery in business transactions and public-sector corruption. Those cases focus on an advantage. Section 168b StGB focuses on the procurement agreement.
From a legal perspective the file must show precisely which agreement is alleged and which offer it affected.
Procurement cases often turn on emails, calendars, chat messages, offer versions, calculations and minutes. Internal notes can also become important.
Not every contact between companies is criminal. The key question is whether the contact supports an allegation of a restrictive agreement in a concrete procedure.
Independent calculation, documented business reasons and compliance steps may be exculpatory.
Companies should quickly clarify who worked on the tender and which communication channels were used. Project leaders, sales staff and management may have different knowledge.
Corporate criminal liability under the VbVG may become relevant. That follow-up question does not replace the assessment of the individual person.
Unstructured internal questioning can align statements or affect evidence. It should be avoided.
Before a statement or broad data disclosure, the concrete allegation should be known. File inspection and orderly data preservation are usually the first step.
During searches, responsibilities, seized material and sealed records should be documented carefully. Nobody should improvise explanations of technical or commercial processes.
It may also be necessary to separate procurement-law, employment-law and internal compliance issues.
The allegation depends on the procedure, communication and concrete competition.
| Point | Meaning | First check |
|---|---|---|
| Procedure | Concrete tender | Which tender is affected? |
| Agreement | More than mere contact | What was allegedly agreed? |
| Offer | Competitive impact | Which offer decision is at issue? |
| Evidence | Communication and calculation | What shows independent conduct? |
Important: Preserve communication completely and do not delete chats or offer versions. Exculpatory calculations also need their original context.
No. Contact becomes relevant only if it can be assessed as a competition-restricting agreement in a concrete procurement procedure.
No. Corruption offences concern advantages and bribery. Section 168b StGB concerns competition in procurement.
Secure tender records, communication, calculations and responsibilities. Statements should follow file inspection and legal structuring.
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