Sweden: procurement & a fair trial
17 October 2018
Flood Herslow Holme Advokatbyrå acted in a court case as legal counsel for a procuring authority, in whose favour Sweden's Supreme Administrative Court has recently ruled.
The case concerns the scope of an administrative court’s requirements for judicial review of a contract award procedure, in order to ensure that the proceedings as a whole accord with the right to a fair trial.
The dispute in the main proceedings hinged on whether a complaining tenderer (which had been the contractor prior to the procurement) in a public procurement case had the right to access all the documents which the administrative court had required, within the scope of judicial review, in order to try the case. The court stated that this right does not necessarily entail that all documents have to be communicated to the complaining tenderer and that the court would also consider the protection of confidential information. With this in mind, the court might refuse to communicate documents from the winning tenderer’s tender offer.
The court stated that, in order to ensure that the judicial review accords with the right to a fair trial, the principle of protection of confidential information and of business secrets must be observed in such a way as to reconcile it with the requirements of effective legal protection and the right of defence of the parties to the dispute. Furthermore, the court held that the judicial review of a public procurement case regarding two commercial parties should be based on the reasons for their retrieval.
When balancing the complaining tenderer’s right to access to the information regarding the winning tender offer against the right of other economic operators to the protection of their confidential information and business secrets, the Supreme Administrative Court stated that the Administrative District Court had met the requirements of judicial review.
For further information, contact:
Toralf Hällen, Advokat
and
Gustav Nittby, Advokat
Flood Herslow Holme Advokatbyrå, Stockholm
t: +46 8 56 26 90 00
#Sweden, #procurement, #judicialreview, #confidential, #information