ThommessenFlow Find people
Legal developments

September 2022: Latest news in public procurement

Getty Images 1189336762

Read more about the possibilities of making changes to contracts in times of unrest and unpredictability, a new guide on evaluation models and a new NS standard.

Changes in contracts in times of unrest and unpredictability – limitations and opportunities

The pandemic and war in Europe have led to contracting authorities experiencing challenges as a result of increased costs and uncertainty of delivery to a greater extent than before. Hence, it is of particular importance that contracting authorities draft flexible contracts by including relevant and comprehensive amendment clauses.

New NS standard

Standard Norge has issued a new NS standard on integrity and accountability in public procurement. The purpose of standard NS-EN 17687 is to assist procurement organisations in safeguarding integrity, accountability and transparency in public procurement processes.

A new decision on the right to remedy significant deviations in an ongoing tender

In case LB-2022-60123 of 2 September 2022, the Borgarting Court of Appeal discussed whether significant deviations from the tender documents can be remedied by optimising the offer in a competitive dialogue. The Court relied on the traditional view that the contracting authority cannot assign the contract to a bidder whose offer differs from the absolute requirements set in the tender documents. However, referencing case 2021/2139 of the Norwegian Complaints Board for Public Procurement ("KOFA"), the Court expressed that this does not prevent a bidder form remedying any significant deviations through the optimisation process that takes place through competitive dialogue.

  • Please find Borgarting Court of Appeal's decision here, and our view on case 2021/2139 by KOFA here

New guidelines on evaluation models by DFØ

In the Norwegian Agency for Public and Financial Management's ("DFØ") new guidelines on evaluation models, it is recommended that contracting authorities evaluate the bids based on a model where quality is valued, instead of the traditional models in which price is converted into points. This model has only been used to a limited extent in Norway, and it will be interesting to see the practical and legal issues that may arise if it is used to a greater extent in the future.

Our team

Thommessen's public procurement team has extensive experience. We assist contracting authorities in preparing procurement strategies, producing tender documents, as well as planning and executing procurements, including handling of requests of information and complaints. Further, we assist bidders with review of tender documents, preparation of bids and negotiation strategy, and assess whether there are grounds for appeal.

Feel free to contact us if you have any questions or need assistance.

Contact persons