Each year nearly NOK 500 billion is spent on public procurement in Norway (Difi). Public procurement processes are subject to a set of rules and regulations across the EU and Europe. In order for this system to work as intended, it is essential that suppliers who feel they have been subject to a process in conflict with applicable laws and regulations, complaints.
Many fail to complain
In our experience, many suppliers fail to take this step because they fear complaining might harm their chances of success in future procurement processes, and don’t want to seem “difficult”.
Not only is it fully possible to submit a complaint in a professional way – it is an important part of the game. In our opinion, suppliers should not fear this.
How to submit an effective complaint?
In the following you will get a few tips for the complaint process:
First things first
The first thing you should do if you are considering submitting a complaint, is to contact the contracting authority in question and ask them to send you an explanation of why the winning bid was chosen - if you have not yet received this. The authority is obliged to provide you with this and must be able to document that the decision has been made in accordance with applicable laws and regulations.
Access to relevant information
If the contract has been awarded, you should also request access to relevant documentation, such as the evaluation matrix, the evaluation protocol, as well as the winning bid. This information will help you further decide whether you should move forward with your complaint or not – and if so on what grounds.
In most public procurement processes (that are above some threshold) there is a mandatory standstill period between the notification of the award decision and the actual signing of the contract. This period is referred to as a standstill period, or “karensperiode” in Norwegian. In this period, the contracting authority may still reverse their decision, and it therefore allows unsuccessful suppliers an opportunity to challenge the decision before the contract is signed.
If necessary, it is possible to request an extension of the standstill period until your complaint has been assessed, but there is no guarantee this will be granted.
Also read: 5 tips for successful tendering in Norway
What is the purpose of the complaint?
Do you wish to stop the contract from being signed, or is the goal to claim compensation?
At this stage it is necessary to decide whether you want to file for a temporary injunction to stop the contract from being signed, or if you just want to claim compensation. This assessment might be quite complex, and will depend on the strength of your case, what you wish to accomplish, as well as your chances of success in a subsequent compensation claim.
Visit our website to see how we can help you with public procurement in Norway.
After the contract has been signed
Once the contract has been signed, the decision cannot be reversed. Your remaining alternatives at this stage are to file a complaint with KOFA, The Norwegian Complaints Board for Public Procurement, and/or take your case to the courts.
Breach of procurement regulation might give you the right to claim compensation. The common principles of Norwegian tort law apply, and thus the following conditions must be present:
- basis for liability
- (documented) financial loss, and
- proximate cause (causality)
In Norway, it is the ordinary courts that decide on matters of compensation.
You may have the right to claim reliance loss, i.e. you should be put in the position you would have been in had the contract never been made – and in some cases expectation interest, i.e. you should be put in as good a position as you would have been in had the contract been performed.
Feel free to contact us at any time should you have questions or need assistance:
Magnus Legal and Inventura combine forces
In order to offer our customers the best expertise in the area of public procurement, Magnus Legal has entered into cooperation with Inventura. Inventura offers comprehensive and complete assistance, that will increase your chances of winning the competition.
Inventura – experts on procurement and supply chains
Inventura is a Norwegian consulting company, specializing in procurement and public procurement, and the development of efficient value chains. With almost 80 lawyers, economists, engineers and other skilled professionals, passionate about procurement, Inventura can guide you safely through the processes connected to procurement and giving tenders in both the private and public sector. Inventura has experience from many industries and assist both buyers and suppliers. They have offices in Oslo and Bergen, and customers nationwide – and abroad.
Read more on the website: www.inventura.no/en
Article first published November 2018, latest update October 2021.