Suppliers Submitting Tenders in Swedish Public Procurement’s – be (Pro)Active at all Times!

In Sweden, review of public procurement’s is rather frequent compared to many other Member States. In 2020, more than 3,500 applications for review of public procurement’s were filed with the Swedish administrative courts according to statistics from the Swedish Competition Authority. Recent changes in Swedish public procurement law and case-law force suppliers to be proactive at all stages of a procurement process.

Suppliers need to take proactive measures to minimize any damage during the tender period
Successful legal measures against a public procurement require that the supplier has suffered damage or risks suffering damage due to the fault of a procuring organisation (hereinafter called the “damage prerequisite”). In two rulings from January 2022, the Swedish Supreme Administrative Court (Sw. Högsta förvaltningsdomstolen) established that a supplier must not only show that it has suffered damage or risked suffering damage, but also that it has taken the necessary preventative measures to limit such risk. The supplier may therefore be required to ask the procuring organisation for clarifications during the tender period if there are ambiguities or inaccuracies in the procurement documents.

The lower courts have applied the Supreme Administrative Court’s reasoning extensively during the last year, finding that the damage prerequisite is not met when the supplier has failed to ask questions during the tender period. Interestingly, the lower courts have applied the same reasoning to all types of faults in the procurement documents, not just ambiguities or inaccuracies.

When applying for review – make sure to get a confirmation of receipt!
According to Swedish case-law, a supplier wishing to apply for review of a procurement must ensure that the application is not only submitted in due time, but also that it reaches the court in due time. Therefore, the supplier should at least ensure that it receives an automatic confirmation of receipt from the court and contact the court if no such confirmation is received.

The procedural rule of preclusion and other issues to bear in mind during the review procedure
A procedural rule of preclusion was recently introduced in the public procurement review procedure. As a general rule, a supplier who applies for review now has three weeks (counting from the date the court receives the application) to plead all the facts on which its claim is based. This means that the supplier must be proactive and make sure to obtain sufficient information and draft an exhaustive submission within a very short period of time.

Concluding remarks
In conclusion, suppliers need to be well informed and active at all times; during the tender period, during the review procedure and also when drafting and filing an application for review. Accordingly, it has become much more difficult for suppliers to meet the damage prerequisite and thereby be successful in a request for review.

A supplier seeking to avoid legal proceedings may also consider the alternative to contact the procuring organisation and inform it about faulty outcomes in the assessment of tenders. In the case of miscalculations or misunderstandings that may be a way for both parties to reach a prompt and correct outcome. However, in case that this is not possible, the supplier must make sure to take the above proactive measures. The long-term effects of the new case law on both the number of applications for review, and the Swedish public procurement market as a whole, remain to be seen.