Tendering for public contracts in Norway: In this article you will find an overview of everything you, as a supplier, should keep in mind if you are going to submit a complaint to the Norwegian Public Procurement Complaints Board (KOFA).
What is KOFA?
KOFA is an independent, national complaints body which handles disputes between public purchasers and suppliers to the public sector, concerning breaches of the public procurement regulations.
Who can complain to KOFA?
Anyone that has substantiate grounds for appeal in a specific case may do so. This means that your case must be both eligible and legitimate in order to initiate a complaint. Submitting a bid in a tender process will always give grounds for appeal.
If an illegal direct purchase is suspected, you are not required to have submitted a bid, or to have a specific interest in the case, in order to lodge a complaint with KOFA. This kind of direct procurement indicates that a client has entered into a contract that was not announced in accordance with public procurement regulations.
Not announcing a public tender essentially means it has been prevented from being correctly shared with the open market. This is considered a serious breach of the law, hence why there are specific rules for these types of tenders and for the complaint and sanctioning options.
Read more: How and when can a supplier request access to the documents in a public procurement process?
What can you complain to KOFA about?
You can appeal to all contracts that are covered by the public procurement regulations. This regulatory framework consists of public procurement law, as well as a number of regulations.
Note that KOFA is not authorized to handle questions related to other competition law, such as the State Aid Code or the Competition Act.
Also note that public purchasers enjoy discretionary procurement powers. This includes defining the competition requirements and the price model the offers are to be evaluated against.
KOFA can only overrule such exercise of discretion if it is in conflict with the fundamental principles governing public acquisitions. If you believe this is the case, it is crucial that you in the complaint provide a detailed account of what you think is incorrect.
Read more: 5 tips for successful tendering in Norway
What can KOFA decide?
As of 2017, KOFA was again authorized to impose penalties on illegal direct procurements. Such decisions are legally binding for the parties involved. KOFA has a duty to impose a fee in cases where the public authority has intentionally or by gross negligence made an illegal direct procurement.
When KOFA makes decisions related to other types of breaches to the procurement regulations, the decisions are only advisory. In these cases, the KOFA decision is not legally binding for the parties involved.
Get help: Public procurement in Norway
Cost of complaining to KOFA
To have a complaint handled by KOFA costs NOK 8,000. If the complaint concerns an illegal direct purchase, the fee is NOK 1,000.
You must complain within six months of the signing of the contract in the tender process you wish to appeal. For illegal direct purchases, the deadline is two years.
A complaint to KOFA must be drafted in Norwegian and submitted in writing. In the complaint, you must explain the specific breaches of the procurement rules you believe the public authority has made. It is important to enclose documentation that supports your standpoint. You must always include the announcement and the tender documents. It will often be relevant to enclose both offers, procurement protocols, various minutes and other correspondence you have had with the defendant.
Whilst you can write the complaint yourself, it is advisable to get legal assistance to ensure you identify all relevant legal issues that can justify why the contract is not lawful. Incomplete complaints will be rejected by KOFA.
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 is a Norwegian consulting company, specializing in procurement and public procurement, and the development of efficient value chains.
With almost 100 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 December 2018, latest update June 2022.