Every year in Norway nearly NOK 500 billion is spent on public procurement contracts (Difi). There are set tender rules across EU and Europe. If you feel the tender process was not run according to the rules, you have the right to register your complaint.
Many fail to complain
Honesty and transparency on both sides of the bidding process are key to a successful tender process. One critical element of ensuring the maintenance of this transparency is the established complaints procedure. This is setup to protect any suppliers that feel they have been subject to an unfair or incorrect tender process.
In our experience, the reason why many suppliers do not initiate a complaint, even though they have a justifiable case to do so, is due to the perceived wider repercussions of taking such a formal step. Many believe they will be side-lined in the next rounds of tenders or any future bids.
However, in our opinion, it is entirely possible to file a complaint in a professional manner, basing your reasoning on facts. If done correctly, this process should not leave a negative impression of your company, but rather indicate your professionalism.
How to submit an effective complaint?
Follow these steps to improve your chances of success in a complaint process:
The first thing you should do is contact the authority who put the bid up for tender. You should ask them to supply you with the reasoning for why the winning bid was chosen. The authority is obliged to provide the reasoning behind their decision. This reasoning must make it clear that the decision has been made in accordance with laws and regulations for the public tender process, and whether there is a genuine foundation for your complaint.
If the tender has already been decided, you should request access to all tender documentation specific to this tender, including an evaluation matrix or reports and the other bids. If you would like to know how to do this, read more here: How and when can a supplier request access to the documents in a public procurement process?
This will make you better equipped to assess whether to pursue a complaint further, as well as understanding the potential basis for your complaint.
Waiting period? (Karensperiode)
In any public procurement process there is a period of time between a supplier being awarded the tender and the signing of the contract. This period is called “Karensperiode” in Norwegian, or standstill period. In this period, the public authority posting the tender can change their decision. This means that if you have grounds for your complaint, there is still time to reverse the decision. It is also possible to request an extension to the standstill period until the complaint has been assessed, but such an extension is rare.
Also read: 5 tips for successful tendering in Norway
What is the objective of the complaint?
Is your objective to prevent the signing of the contract or to demand compensation?
At this stage you will need to decide whether the aim for your complaint is to stop the current contract from being signed or to settle for compensation. This is a complex evaluation based on the strength of your case, the supporting evidence and the potential for your subsequent claim for damages.
Visit our website to see how we can help you with public procurement in Norway.
If the tender process is completed
Once the contract is signed, and the tender process complete, this cannot be overturned. Your remaining alternatives are to file a complaint with KOFA, the The Norwegian Complaints Board for Public Procurement, or take your case to the courts.
One penalty for violation of the procurement rules can include the payment of compensation. The basic common legal principles for determining compensation applies. There must be:
- a basis for liability (the error)
- a documented financial loss, and
- a sufficient causal link between the error and the financial loss
In Norway, it is the ordinary courts that decide on matters of compensation.
As part of your compensation claim you may be entitled to have your reliance loss (negative contract interest) that may have accrued covered, i.e. you should be treated as if you had not participated in the tender process. In some cases, you may also be entitled to loss of expectation – (positive contract interest), i.e. you should be treated as if you have submitted the successful tender.
To win public tender processes there are may things to keep in mind. Mistakes could have a significant impact. Your tender could be rejected, or not be considered at all if you fail to describe your qualifications in an understandable and precise manner.
To learn more about how you can win your next tender, download our free guide for suppliers to the Norwegian public sector.