| Public
procurement in Sweden
On this page you will find general
information about Swedish public procurement. Use this link for legal advice .
For general information, council directives and the unsorted links catalogue we advice
you to visit General information page. Suggestions
for improvement and of course tips on other procurement pages on the net
can be sent by this E-mail form.
More nformation is given on the Internet page
of the National board for Public Procurement (NOU).
Link to NOU and to its english
brochure in PDF.
The Swedish Public procurement
Act - LOU
- came into force January
1st, 1994 and it regulates almost all public procurement of supplies, services
and works. The procurement act is based on the EC procurement directives
that is
93/36 EEC (supplies),
93/37/EEC (works),
92/50/EEC (services),
93/38/EEC (supplies, works and services
within the utilities sectors water,
energy, transport and telecommunications),
89/665/EEC and 92/13/EEC (directives
on remedies).
As the EC directives only regulates
procurement having a value over the threshold values the Swedish procurement
Act in principel regulates all procurement.
Contracting entities
in Sweden shall follow LOU as well
as EC procurement directives because of the direct effect of the EC diretives.
Contracting entities are
government agencies,
local government agencies and other
agencies,
county councils and ecclesiastical bodies
and
certain publicly owned companies, foundations,
societies and associations
certain private companies which conduct
operations with special permission from the authorities
Threshold values
The contracting entities shall calculate
the value of each procurement in order to determine whether the procurement
is over or under the so-called threshold values. The threshold values for
supplies and services are just over SEK 1.8 million and for works
just over SEK 46 million.
Good business practice, competition
and objectivity
Under LOU all procurements shall
be performed in a business like manner and the contracting entity shall
take advantage of existing competition and tenderers shall be treated objectively.
Exceptions from LOU
Certain procurements made with the
support of rules agreed in international organisations etc. are excepted
from the provisions of LOU. There are also further exceptions.
Services
Under the annex to LOU services
are divided into A- and B-services. The procurement of A-services over
the threshold value entails considerably greater requirements where formalities
are concerned, among others the requirement for contract notices.
Nomenclature
The EC Commission has produced a
special nomenclature (CPV) for supplies,
services and works. In the nomenclature
each product and service has a digital code.
Combination of supplies, services
or works
If the procurement consists of a
combination of supplies, services or works, it shall follow the rules which
apply to the type which has the greatest value. The same applies if it
is a combination of A- and B-services.
Contract documents
If the entity cannot describe the
object which shall be procured without referring to a brand name or product
name the reference to such products must be formulated, by the addition
of the expression "or equivalent", so that similar equivalent supplies
and processes can be included in the evaluation of tenders.
Procurement over the threshold values
requires referens to European standards.
Stipulated requirements may not be
changed during a procurement. If, during a procurement, a contracting entity
finds it necessary for various reasons to change its requirements, the
procurement must normally recommence.If the procurement is over the threshold
values, a new contract notice must be published.
Tenders received after the closing
date
An application or tender received
after the closing date may not be included in the evaluation of the tenders.
Evaluation of tenders
The tender which shall be accepted
shall either be the economically most advantageous in consideration of
price, operating costs, quality, aesthetic and functional characteristics,
service and maintenance, environmental impact etc. or have the lowest price.
The contracting entity may not evaluate
tenders against other criteria than those given in the contract notice
or in the contract documents.
Review and damages etc.
Special legal remedies to give a
wronged supplier the possibility to obtain legal remedy have been included
in LOU.
During an ongoing procurement (until
the conclusion of a contract) a supplier who considers that he has been
harmed or risks being harmed may apply to the county administrative court
for measures to be taken. The county administrative court may decide that
the procurement procedure shall be recommenced or that it may not be concluded
until a correction of the infringement has been made. The court can also
make an interim decision pending a final decision. Reviews have priority
at the county administrative
courts. Appeals against the decision
of the county administrative court can be lodged at the administrative
court of appeal.
When a procurement has been concluded
(contract concluded), a supplier who considers that he has been harmed
can institute proceedings for damages against the contracting entity at
a general court. Appeals against the decision of the general court can
be lodged at the court of appeal. In cases where suppliers consider that
they have been wrongly treated, there is also the possibility to appeal
to the EC Commission.
The EC directives are only concerned
with large procurements, i.e those over the so-called threshold values.
There are EC directives for each of the following areas: supplies, services,
works and the utilities sectors as well as for remedies. By its entry into
the EU (previously under the EEA agreement) Sweden has undertaken to incorporate
the content of the EC directives in Swedish law. The purpose of the directives
is to give suppliers equal
opportunities to submit tenders
for public procurement contracts. With the aid of greater openness and
publicity, trade across borders shall be encouraged
and facilitated.
Notification
To make it possible for all conceivable
suppliers to become aware of forthcoming and concluded procurements, notification
of such procurements shall be published in the Supplement to the Official
Journal.
European standards
If contract documents contain technical
specifications these shall refer to European standards where these exist.
The contracting entities are therefore liable to keep themselves informed
of any existing European standards. There are also a growing number of
European standards in the service sector. The Swedish Standards Institution
can provide information on standards and specifications.
The technical ability, capacity
and financial position of suppliers
LOU stipulates the requirements
a contracting entity may make on suppliers where their technical ability
and capacity as well as their financial position are concerned. In its
contract notice or contract documents the entity shall specify the certificates
etc. which the supplier shall submit to show that he meets the stipulated
requirements to be considered as a supplier.
Procurement procedures
the following procedures can be
used
Open procedure
a procurement in which all suppliers
may submit tenders. After advertising the supplier requests the contract
documents and these are dispatched as requests are received. No negotiations
with suppliers may be held.
Restricted procedure
a procurement in which the contracting
entity invites certain suppliers to submit tenders. The contract notice
shall contain requirements in respect of suppliers. Then suppliers verify
their ability by producing certificates and apply to participate in the
tendering. The contracting entity then selects at least five (if there
are so many), or as many as have
been stated in the contract notice,
among the suppliers who meet the requirements
(pre-qualification phase) or the
number stated in the contract noti-ce. The contract documents shall then
be sent simultaneously to the suppliers. No other tenders than those from
the suppliers who have been invited to tender will be evaluated by the
contracting entity. No negotiations with suppliers may be held.
Negotiated procedure
a procurement in which the contracting
entity invites certain suppliers to submit tenders and then can enter into
negotiationswith one or several of them. As in the restricted procedure
there is firstly a pre-qualification phase. Then the contracting entity
invites at least three suppliers, or the number stated in the contract
notice, to submit tenders
and the entity can negotiate with
one or several of them. Outside the utilities sectors negotiated procurements
may only be chosen in a few, specially enumerated procurement situations.
In a few limited cases negotiated procurements may take place without being
preceded by the publication of a contract notice.
Time limits
LOU stipulates time limits (minimum
times) for tenders and applications to participate in tendering. In the
open procedure the minimum time for the submission of tenders is 52 days
and in the restricted and negotiated procedures the minimum time is normally
37 days for applications to participate in the procurement and a further
40 days for the submission of tenders. Within the utilities sectors there
are other time limits. The time limits commence from the day the contract
notice is sent to the Official Journal.
Under certain circumstances a faster
procedure may be used (accelerated procedure). Tenders shall be submitted
in writing. Tenders submitted by fax are not valid.
The rules under the threshold values
which are in Chapter 6 of LOU are, in the main, the same as applied (to
December 31st, 1993) in the Procurement Ordinance (for government agencies)
and the Procurement Regulations (for local authorities and county councils).
However, certain amendments and additions have been made to the rules to
make them correspond more with the rules for procurements over the threshold
values.
Simplified procurement
Under Chapter 6 of LOU the procurement
procedure is called simplified procurement. In a simplified procurement
tenders are invited through contract notices (normally in national periodicals
or journals) or by written communication with suppliers.
The entity shall approach as many
suppliers as is necessary to achieve adequate competition in consideration
of the size and character of the procurement. A written invitation to tender
shall be made even if, owing to exceptional cirumstances, it is only possible
to approach one supplier. A supplier who has not been approached is entitled
to request the contract documents on the same conditions as other suppliers.
A contracting entity may not, therefore, refuse to hand over the contract
documents to a supplier who requests the documents before the time limit
for the submission of tenders expires.
Participating suppliers shall submit
written tenders and the contracting entity may negotiate with one or several
tenderers.
Direct procurement
Only if the value of the procurement
is low or if there are particular reasons, such as great urgency resulting
from circumstances which could not have been anticipated and are outside
the control of the entity, may the procurement take place without written
tenders being requested (direct procurement). Even in cases of direct procurements,
price comparisons should be made if possible.
Main rules and exemptions
If, during a procurement, a contracting
entity selects an exempting rule in LOU, the burden of proof that it has
fulfilled all conditions for making the exemption lies with the entity.
For example the use of the negotiated procedure outside the utilities sectors
is regarded as an exemption. The EC court applies a very restricted interpretation
on the possibility of using the exempting rules.
If repeated direct procurements of
the same type of product or service are made, a framework agreement should
be concluded after a procurement has been made by another procurement procedure.
Direct procurements are not permitted in cases of urgency which could have
been anticipated.
The technical ability and capacity
and financial position of suppliers
For procurements under the threshold
value the contracting entity can choose between requesting certificates
from the supplier or obtaining information itself that, among other things,
the supplier is registered for taxes and social insurance fees and that
he is in the limited companies register, the partnerships register or the
associations register etc.
The supplier shall be registered
If a supplier is a limited company
or a partnership or an incorporated asso-ciation,
he shall be registered in the appropriate
register if he is to be accepted as a supplier. The register is kept by
the Swedish Patent and Registration Office. Furthermore if a supplier is
to be accepted, he must be registered for the accounting and payment of
value added tax, withheld preliminary income tax and social insurance fees,
if so liable.
Reasonable time limits for tenders
Under the threshold values there
are no specially stipulated minimum times for the submission of tenders.
The requirement is that the contracting entity shall allow a reasonable
period of time. There is a county administrative court decision which obliged
a contracting entity to recommence a procurement since the time given was
too short.
Written tenders
If a contracting entity shall evaluate
a tender, it must be in writing. If a tender is submitted by telegram or
fax it must be confirmed immediately by a properly signed document. If
the tenderer intends to send the written confirmation of his tender by
post, the tender documents must be sent by post immediately after the dispatch
of the telegram or fax. The contracting entity cannot accept that a supplier
is given more time to work on the tender.
A fax is not regarded as a written
document under LOU.
B-services over the threshold
values
In addition to the above-mentioned
rules, in procurements of B-services over the threshold values, a contracting
entity shall refer to European standards in those cases the contract documents
contain technical specifications.
Furthermore the threshold value shall
be calculated according to the rules contained in Chapter 4 or 5 of LOU.
When the procurement has been concluded the contracting entity shall announce
the result of the procurement in the Official Journal of the EC within
48 days (in the utilities sectors 60 days).
Procurements which concern national
security and defence procurements
Procurements which are covered by
secrecy or other special restrictions in respect of national security and
procurements of defence supplies and services which have no civil use are
regulated in Chapter 6 of LOU regardless of their value. However, the Government
can make exceptions from the provisions of LOU for such procurements in
consideration of defence or national security interests.
Framework agreements
In the central government administration
there are call off agreements which are signed on behalf of all government
agencies and which cover many products and services. An agency can call
off directly from the supplier at stipulated prices and conditions without
having to make a procurement of its own. A catalogue/diskette of the agreements
can be ordered from the Swedish National Audit Office. Many local authorities,
county councils and publicly owned companies have corresponding systems.
In several cases the use of such agreements is compulsory. There are some
agreements which may be used by the entire public sector, or a very great
number of entities in this sector.
Commercial secrecy
Tenders and applications to participate
in tendering are secret. Tenders are totally secret until a contract has
been concluded or all tenders have been made public or the contracting
entity has concluded the procurement in another way.
Prolongation of contracts
A prolongation of a contract may
only be made if there is a prolongation clause in the contract. When the
contract period has ended, after any prolongation, a new procurement shall
be made. Agreements which cover excessively long periods of time or which
are prolonged far too generously may constitue a breach of the Treaty of
Rome. A contracting entity may not provide information in respect of whom
it has approached, if it has received tenders or applications and naturally
not in respect of who has submitted a tender or an application to participate
in tendering. Tenders and applications should therefore not be received
in such a way that unauthorized persons can study their contents (e.g.
a fax
in a corridor).
Secrecy
The contract documents are secret
in restricted and negotiated procument procedures
The contract documents are secret
up to the time they are dispatched simultaneously to the suppliers invited
to tender.
Extended commercial secrecy
When a contract has been concluded
with a supplier the contract documents are normally unrestricted, i.e.
everybody has the right to study them. However, the contracting entity
can keep all documents secret even after a contract has been concluded
if there is reason to assume that the contracting entity would be harmed
if the information was disclosed. If a supplier requests that certain information
shall be kept secret the entity can keep
this information secret if it deems
that there is special reason to assume that the supplier would be harmed
if the information was disclosed. Regarding the information contained in
an accepted tender (signed contract) these can be kept secret for up to
two years (for some special entities and the Defence Materiel Administration
five years). Information apart from the conditions in accepted tenders
can be kept secret for up to 20 years.
Appeal
If an agency (central or local government)
or a company owned by a local authority does not hand over documents relating
to a procurement, an appeal can be lodged against the decision in the Administrative
Court of Appeal.
NOU
is a central government agency.
It consists of a secretariat and a board. The secretariat is responsible
for day to day operations and for contacts with contracting entities, other
organisations and individuals.The tasks of NOU include the following to
supervise observation of the Public Procurement Act (LOU), the GATT agreement
and the procurement agreement under the WTO to work for efficiency in public
procurement to spread information by means of telephone advisory services,
newsletters, publications, seminars and conferences to give general advice
and comments on how the procurement
regulations shall be interpreted
to follow developments in the area of procurement in the EU and the WTO
|