Swedish public tendering case: can different criteria be used to qualify domestic and foreign contractors?

 

Flood Herslow Holme has acted as legal counsel for a procuring authority in whose favour the Supreme Administrative Court recently ruled in a court case.

The main question in the case was whether different criteria may be used to qualify domestic and foreign contractors. In the case, the procuring authority had required that foreign tenderers submit certain information themselves, whereas the procuring authority would gather the same information regarding Swedish tenderers itself. The information that was to be supplied to the procuring authority was the same regardless of the tenderer’s nationality, only the means of procuring that information were different.

The lower courts found that the practice entailed that the administrative advantages were not sufficient to treat foreign tenderers differently from domestic tenderers. The Supreme Administrative Court found that the practice was acceptable. The court stated that the procuring authority with relative ease could find information about Swedish tenderers through existing public records. However, there was no reason to assume that the procuring authority would have the same ability to gather information from foreign records abroad, or for that matter, even have any knowledge of such foreign public records in other nations. The practice was therefore found to be in accordance with the principle of equal treatment.

For further information, contact:

Gustav Nittby, Associate

Flood Herslow Holme, Malmö

e: gustav.nittby@fhhlaw.se

t: +46 70 482 01 33

and

Toralf Hällen, Senior Associate

Flood Herslow Holme, Stockholm

e: toralf.hallen@fhhlaw.se

 t: +46 70 884 12 52