Norway, as a member of the European Economic Area (EEA), has implemented EU public procurement directives into its national legislation. This comprehensive framework governs how public bodies acquire goods, services, and works. The Norwegian system is based on the following key elements:
1. Legal Framework
The Norwegian Public Procurement Act serves as the overarching legislation, supplemented by specific regulations that implement EU directives:
1. Public Procurement Directive (2014/24/EU)
2. Utilities Procurement Directive (2014/25/EU)
3. Concession Contracts Directive (2014/23/EU)
4. Defence and Security Public Procurement Directive (2009/81/EC)
These regulations are adapted to fit within Norwegian legislative traditions, which may result in some differences in form, though the substance largely aligns with EU rules.
2. Applicability and Thresholds
The rules apply to procurements above certain threshold values, which are set in Norwegian Kroner (NOK) but correspond to EU thresholds. Below these thresholds, contracting authorities have more flexibility but must still adhere to principles of competition, equal treatment, non-discrimination, transparency, and proportionality.
Norway has also established national rules for procurements below EU thresholds and for certain services, regardless of value. These rules are integrated into the Public Procurement Act and Regulation.
A distinct threshold of NOK 100,000 exists, below which none of the public procurement rules apply.
3. Public Notice
Procurements above EU/EEA thresholds must be publicly announced. Notices are submitted through the Norwegian database (Doffin) and then forwarded to the EU's Tender Electronic Daily (TED) database. For procurements under national rules, only publication in Doffin is required.
Below national thresholds, public notice is voluntary, and authorities can use other means to ensure competition.
4. Procurement Procedures
For above-threshold procurements, open or restricted tender competitions are the main procedures. Negotiated procedures and competitive dialogues are available under certain conditions.
National rules allow for more flexibility, permitting dialogue with tenderers at various stages of the process, ranging from minor clarifications to full-scale negotiations.
5. Substantive Rules
While largely aligned with EU directives, Norwegian rules include some unique provisions:
1. Environmental considerations: A minimum 30% weighting for environmental criteria in award decisions.
2. Extended exclusion grounds: Acceptance of fines for certain offenses can lead to exclusion, not just final convictions.
6. Transparency and Confidentiality
The Freedom of Information Act generally applies to procurement documents, but access may be deferred until after contract award. Contracting authorities must balance transparency with protecting tenderers' trade secrets and maintaining the integrity of ongoing negotiations.
Unit prices are generally considered trade secrets, while total amounts are subject to public access. In certain circumstances, such as when a negotiated procedure might be reopened, all price information may be kept confidential.
7. Enforcement
Norway offers a dual-track system for challenging procurement decisions:
1. Complaints to the contracting authority: Possible until contract signing.
2. Norwegian Complaints Board for Public Procurement (KOFA): An administrative body issuing advisory opinions, with power to fine for illegal direct awards.
3. Ordinary courts: Can set aside decisions before contract signing and award damages after signing.
Tenderers can seek injunctions to prevent contract signing while disputes are pending. Damages may cover either lost profits (if the tenderer can prove they would have won the contract) or bid costs.
Conclusion
Norway's public procurement system reflects a balance between adhering to EEA obligations and maintaining national priorities. The framework aims to ensure fair competition, transparency, and value for money in public spending while aligning with EU standards and addressing specific Norwegian concerns, particularly in environmental considerations.
The system's complexity, with its various thresholds, procedures, and enforcement mechanisms, requires careful navigation by both contracting authorities and tenderers. The emphasis on transparency, coupled with protections for confidential information, seeks to maintain the integrity of the procurement process while allowing for public scrutiny.
The dual enforcement system, allowing for both administrative review through KOFA and judicial recourse, provides multiple avenues for addressing potential violations. This approach aims to balance the need for efficient dispute resolution with the requirement for thorough legal examination of complex cases.
As public procurement represents a significant portion of economic activity, the effectiveness of this system has far-reaching implications for both public sector efficiency and private sector opportunities in Norway. Continual adaptation of these rules, in line with EU developments and national priorities, will be crucial in maintaining a robust and fair procurement environment.