How to choose the best tender within the limits of the Public Procurement Regulation, illegally short implementation times can lead to an obligation to cancel the procurement, and stricter environmental requirements in public procurement.
How to choose the best tender within the limits of the public procurement regulation?
This was answered by Partner Wenche Sædal and Associate Espen Randen when we, in collaboration with Anbud365, invited to a breakfast seminar on evaluation of tenders on 29 November.
- Did you miss the seminar? See recording here.
are seriousness requirements in conflict with eu/eea law?
The Office of the Auditor General of Norway recently published a report in which strong criticism is directed at state undertakings' failure to comply with the requirement to control salaries and working conditions, when purchasing services and works. The Office of the Auditor General considers that this creates a great danger of social dumping in public procurement.
The "two-link restriction" on the number of subcontractors allowed in public contracts is one of the provisions in the Public Procurement Regulation which are intended to prevent social dumping and ensure adequate control in public work contracts. We have written an article on the two-link restriction, where we also explain the questions raised concerning the legality of the provision.
- Read more at anbud365.no.
Proposed changes in the public procurement regulations
The Government has published a consultation paper on the first part of so called "Norges-modellen", a model for securing a serious and safe working sector. Norges-modellen includes proposed changes to the Public Procurement Regulation, the Utility Regulation, the Regulation on Pay and Working Conditions in Public Contracts and the Construction Client Regulation.
The proposals entail the introduction of several seriousness requirements, currently limited to public work contracts and cleaning contracts above specified thresholds. The purpose is to ensure a level playing field for serious market players, as well as prevent social dumping. In our opinion, the proposals are far less comprehensive than first anticipated.
The consultation deadline is 4 February 2023. Read the proposals here.
New decision regarding access to receive tenders by email
The Norwegian Complaints Board for Public Procurement ("KOFA") issued a decision earlier this autumn which provides useful clarification on the right to receive tenders by e-mail. KOFA found that the contracting authority had breached the public procurement rules by accepting tenders that were delivered by e-mail, as e-mail does not meet the confidentiality requirement in the Public Procurement Regulation. KOFA nevertheless concluded that the violation of the rules in the specific case did not lead to an obligation to cancel the procurement procedure, as it was not "made probable that a near and actual possibility existed that the procurement procedure could have had a different outcome" (our translation) if the correct form of communication had been used.
Read more about the decision here.
Unlawfully short implementation periods for procurements may result in an obligation to cancel the procurement procedure
In a new decision concerning the procurement of a framework agreement for the purchase of pharmaceuticals, KOFA has stated that setting too short implementation periods constitute a breach of the public procurement rules. In the procurement, the contracting authority allowed for an implementation period of two to five months, depending on when the contract was signed. KOFA concluded that the implementation period was contrary to the principles of competition and equal treatment in the Public Procurement Act, and that the procurement procedure should therefore have been cancelled.
- Read more about illegal short implementation time in Dagens Medisin.
Clarifications from the norwegian supreme court on eligibility requirements
On 12 October, the Supreme Court handed down its verdict in the Flage Maskin case. The case concerned a claim for damages for positive contractual interest as a result of the Norwegian Public Roads Administration's (nw: Statens Vegvesen) alleged breach of the Public Procurement Regulation in connection with a procurement for an upgrade of a tunnel on the E39.
The Supreme Court came to the conclusion that Flage Maskin did not meet the eligibility requirement, as it had not documented experience with traffic management.
The judgment provides guidance both on the design, interpretation and application of eligibility requirements, but contains few new clarifications. Most people had probably hoped for a clarification on the basis of liability from the Fosen Linjen judgment for breaches of the Public Procurement Regulation. Perhaps we will get such a clarification in the case between Fauske Municipality and Perpetuum Miljø AS, which will be heard in the Supreme Court in 2023.
The government proposes stricter environmental requirements in public procurements
The Ministry of Trade, Industry and Fisheries has submitted a proposal for consultation concerning stricter environmental requirements in public procurement. The proposal entails changes to the Public Procurement Regulation, the Utility Regulation and the Concession Contracts Regulation. The consultation paper puts forward three alternative proposals, all of which aim to establish a stricter obligation to set environmental requirements in public procurements in order to contribute to the green transition.
We have written an article about the proposed changes, where we also discuss whether stricter environmental requirements are the most effective measure to reduce greenhouse gas emissions in public procurements.
- Read the article at anbud365.no
New KOFA decision on legal competence
KOFA recently issued a decision concerning rejection due to an alleged breach of the rules on adviser's legal competence and legal competence.
The complainant's claim, entailing the failure of the contracting authority to reject the tenderer according to Public Procurement Regulation section 24-2 (1) letter d, was not accepted. The Complaints Board did not find evidence that the adviser had influenced the design of the tender documents in such a way as to give the tenderer a competitive advantage, even though the adviser had been involved in the assessment of needs prior to the procurement procedure and had given the respondent advice through participation in the contracting authority's project group.
The case also entailed a question regarding rejection due to a breach of the jurisdictional provisions in the previous section 6 of the Public Administration Act, cf. the Public Procurement Regulation section 24-2 (1) letter c. KOFA was of the opinion that there was insufficient evidence on whether the person in question had participated in the evaluation and award process. However, KOFA stated that the lack of verifiability was in itself a breach of the Regulation. KOFA did not take a position on the obligation to cancel the procurement procedure.
The case shows that there is still some work to be done before involvement and recommendations given in the preliminary project could trigger an obligation on the contracting authority to cancel the procurement procedure. However, it is important that the contracting authorities are aware of the situation and document any involvement. In addition, the tender documents must be designed as objectively as possible.
Read more about the case here