In brief
As we move into Q2 2024, let’s take a look at the insights and experiences from 2023 and what we should note in 2024 regarding Swedish public procurement issues.
Contents
- The Swedish Competition Authority has been granted new authorities
- New information in procurement notices
- Revised thresholds
- Noteworthy cases from the courts
The Swedish Competition Authority has been granted new authorities
As of 1 January 2024, the Swedish Competition Authority will have increased authority to supervise public procurements. The powers have been adopted in order to make procurement supervision more effective.
Under the new rules, the Swedish Competition Authority may now make decisions on procurement fines without having to apply for a review of the fine in court. This presupposes, however, that the procurement did not begin before 1 January 2024. The decision can be appealed to the Administrative Court as the second instance and a further appeal to the Administrative Court of Appeal requires leave to appeal.
The maximum amount of the fine will be increased from SEK 10 million to SEK 20 million but may not exceed ten percent of the value of the procurement. One of the reasons for the increased amount is that the fine should be sufficiently dissuasive for authorities to avoid violating the procurement rules.
An extended time limit of two years has been introduced for the issuing of procurement fines. Previously, the time limit was one year. The purpose of the change is to give the Swedish Competition Authority better opportunities to detect and investigate more complex cases.
The Swedish Competition Authority will also be able to order contracting organizations to adopt guidelines for direct procurement.
New information in procurement notices
In addition to the new rules that came into force on 25 October 2023, which made it mandatory for Member States to use eForms (the EU’s standard procurement form) in all notices of public contracts above the thresholds, since 1 January 2024, more information than before is required to be included in procurement notices.
It is now mandatory to indicate in all notices whether sustainability or innovation requirements are imposed. Furthermore, a new rule is that the estimated value of the contract or framework agreement must be stated in the notice.
The purpose of the new rules is to improve the possibilities for comprehensive procurement statistics and to give suppliers better access to procurement information.
Revised thresholds
From 1 January 2024, new thresholds apply to public procurement under the Public Procurement Act (LOU), the Utilities Procurement Act (LUF), the Concessions Procurement Act (LUK) and the Defence and Security Procurement Act (LUFS). The revised limits vary depending on the contracting authority and the type of service, see list below (amounts in SEK).
The direct procurement limits for goods, services and works under LOU, LUF and LUFS remain unchanged and are specified directly in the law. The changes, which occur every two years, aim to regulate and facilitate the public procurement process.
Noteworthy cases from the courts
The Supreme Administrative Court ruled that negative partial prices may be prohibited
In a case from 2023, the Supreme Administrative Court stated that it is permitted to set a mandatory requirement prohibiting negative partial prices in tenders. In the case, the contracting authority had required that all partial prices in the suppliers’ tenders should exceed or be at least SEK zero. In the procurement, one tenderer had submitted the lowest tender price overall, but with negative partial prices, and the contracting authority therefore rejected the tender. The tenderer applied for review of the procurement. The court agreed with the contracting authority and held that the requirement was not considered to be contrary to the principle of equal treatment or the rules on abnormally low tenders. The ruling is significant as it means that it is now permissible, in order to combat strategic pricing, to prevent the granting of discounts whereby the supplier pays for the execution of the works.
Verification request was not a supplement to the tender
In a procurement procedure, the question arose whether the winning supplier had fulfilled a mandatory requirement regarding reported reference assignments should amount to a certain value. The Administrative Court of Appeal in Gothenburg held that there was no question of an unauthorized supplementation of the tender when the contracting authorities had requested a verification concerning the value of a reference assignment. The request had been made after the award decision and in connection with the review procedure. According to the Court of Appeal, the supplier’s confirmation constituted evidence rather than a supplement to the tender. The ruling emphasizes the importance of contracting authorities carefully examining whether the requirements are met and following the principle of equal treatment in any investigation.
Supplier considered to have suffered damage despite failure to point out errors
In September 2023, the Administrative Court of Appeal in Sundsvall ruled on a case concerning the procurement of architectural services. In the procurement documents, the evaluation criteria had been unclearly formulated with the risk of arbitrary assessments, and despite the supplier not pointing out the ambiguities, the supplier was considered to have suffered damage. According to the Administrative Court of Appeal, the supplier was considered to have suffered damage from the deficiencies, as it appeared difficult for the supplier to foresee already in connection with the tendering process that the contracting authority would apply the evaluation criteria in an arbitrary manner. The ruling is of interest as it makes a certain deviation from the strict requirement that is now, due to the cases in HFD 2022 ref. 4 i and ii, imposed on the supplier regarding its obligation to limit its damage.
If you have any questions or concerns about the above or need assistance with any public procurement issues, do feel free to contact us.
