In brief
As of last Friday, 1 November 2024, the Swedish Competition Authority has started applying its statement regarding free access to procurement documents. This means that contracting authorities are now, according to the Swedish Competition Authority, expected to make standard contracts such as AB04 and ABT06 available free of charge to tenderers in all public procurement processes.
Comments
- The decision has caused discussions and concerns regarding added administrative burdens and expenses for both contracting authorities and tenderers. Additionally, there is apprehension that the adoption of standards, which encourage predictability and transparency, may diminish.
- Although not legally binding for courts, the Swedish Competition Authority’s stance is intended to guide the public and clarify the assessment of the specific legal issue.
In more detail
In its statement of 28 June 2024, the Swedish Competition Authority argues that it is contrary to chapter 10 section 7 of the Swedish Public Procurement Act to refer to documentation in a procurement that is not available free of charge. The Swedish Competition Authority emphasizes that procurement documents, such as standard agreements, must be available immediately, completely and free of charge in order to meet the requirements of the legislation. This is, according to the Swedish Competition Authority, crucial to ensure transparency and equal treatment in public procurements. Free and unrestricted access to procurement documents also lowers the threshold for participating in public procurements, especially for small and medium-sized companies, and helps more tenderers to submit competitive tenders.
The Swedish Competition Authority has noted that contracting authorities sometimes refer to procurement documents that are not available free of charge, such as standard agreements. This contravenes the requirement of free access to the procurement documents and can create practical problems for tenderers who do not have free access to these documents. A tenderer who has not read the procurement documents in their entirety risks submitting a tender that does not correspond to what it is able or willing to deliver.
According to the Swedish Competition Authority’s position, there is no legal basis for making exceptions to the applicable requirement, even if the cost of access is negligible or if the tenderers are expected to be familiar with the standards. The Swedish Competition Authority refers to the fact that the Public Procurement Directive, which is the basis for the Swedish act, only allows exceptions in specific cases, such as when the documents contain confidential information or require special technical equipment for access.
The provisions of the Swedish Public Procurement Act must be interpreted in the light of the fundamental principles of public procurement law: non-discrimination, equal treatment, proportionality, transparency and mutual recognition. The principle of transparency means that the procurement documents must be clearly formulated and contain all the requirements. Information relating to the procurement must not be kept undisclosed.
The Swedish Competition Authority considers that documents that describe or determine the content of a procurement, such as contract terms, constitute procurement documents and are covered by the requirements set out in chapter 10, section 7 of the Swedish Public Procurement Act. Neither the Public Procurement Directive, the Swedish Public Procurement Act, its preparatory works nor case law provide support for restricting the requirement for free access to procurement documents. The provision does not provide any scope for making exceptions in situations where access to the procurement documents is associated with a negligible cost or a one-off cost, or where it can be assumed that the tenderers are familiar with a standard or a standard contract.
The Swedish Competition Authority will monitor compliance with these rules and may criticize contracting authorities that do not comply with the requirements. The Swedish Competition Authority also considers that a contracting authority’s non-compliance with these provisions may constitute grounds for a tenderer to apply for review of the procurement in question.
