Public procurement notice: Additional Information
Published: 2016-10-22
Buyer: Oljedirektoratet
Country: NO
Region: Rogaland
Contract type: Services
Procedure: Open procedure
CPV classification: 71241000 | 71318000: Lighting engineering services | 71321300 | 71322200 | 71332000
Award criteria: The most economic tender

Technical requirements: The Norwegian Petroleum Directorate was recently contacted by Mercell, who said that a tenderer was prevented from submitting a tender before the tender deadline. This was due to an error on Mercell's part and thereby also on the Norwegian Petroleum Directorate's part as the contracting authority. The Norwegian Petroleum Directorate has assessed the consequences this will have on the entire competition.
According to the regulations § 20-13 (1) letter a, the contracting authority has an obligation to reject tenders that are ‘not submitted by the stipulated tender deadline’. This is an absolute obligation for the contracting authority and there is no room for judgement here. This means that the Norwegian Petroleum Directorate cannot, under any circumstances, consider a tender if it is submitted now after the tender deadline has expired. This is also stated in the Appeals Board's cases 2008/89 and 2008/109, which state that the rejection obligation is so important that in principle there are no grounds for exceptions, even in cases where the error is the contracting authority's fault. The rule is based on the law's founding principle of equal treatment of tenderers. By allowing a tender to be submitted after the tender deadline, you cannot rule out that information about the tenders that were received on time can give the tenderer a basis to adapt their tender.
The question now is whether the competition can/must be cancelled, or whether it can be held with the tenders that were received on time.
As a starting point, the regulations do not include rules that directly force the contracting authority to cancel the competition. Pursuant to PPR § 22-1 (1) the Contracting Authority can ‘cancel the competition with immediate effect if there is justifiable cause’. There is no cancellation obligation in this regulation. As a starting point, the Norwegian Petroleum Directorate can cancel the competition in this case, as it cannot be ruled out that further tenders, if these had been submitted on time, would have affected the outcome of the competition. The question is, however, whether the Norwegian Petroleum Directorate is obliged to cancel the competition in this case.
According to the Public Procurement Act § 5 first section, the contracting authority shall ‘ensure that there is no de facto discrimination between tenderers’. This means that the Norwegian Petroleum Directorate is obliged, in each competition, to treat tenderers equally. This principle, together with the obligation to reject late tenders, makes a starting point for the obligation to cancel the competition in this case. The equal treatment principle is not taken care of in a case where a tenderer is shut out of the competition due to an error on the contracting authority's part.
The obligation to cancel the competition is otherwise commented in legal theory. In her book ‘Public Procurements — Rules, Practice and Systems’, Marianne Dragsten states that there can be an obligation, on the basis of legal practice, to cancel a competition in the following cases.
‘The prerequisite for there being a cancellation obligation is firstly that an error has occurred in the execution that cannot be rectified in an other way than cancellation, c.f. the EU law court's case C-448/01 (Wienstrom) premise 95’ cf. Dragsten s. 716.
In this case it is clear that an error has occurred that cannot be rectified in any other way than cancellation. As previously mentioned, the Norwegian Petroleum Directorate has an obligation to reject late tenders, even in cases where the contracting authority itself has prevented submission on time.
Furthermore, Dragsten writes on the same page that ‘ one of the following conditions [must] be proved:
— the competition could have had another result for a tenderer's (complainant's) outcome if the error had not occurred or
— the error could have affected participation in the competition, i.e. kept tenderers from participating.’
The reason for these requirements are that there is no reason to cancel a competition in cases where the error cannot be seen to be of importance for the outcome of the competition, or for participation in the competition, c.f. the EU court's cases T-345/03 premise 149 and T-50/05 premise 61, as well as the Appeal Board's case 2011/171. In this case, however, both of these requirements, which are alternatives, are fulfilled. We cannot rule out that the competition could have had another outcome if the error had not occurred. There are weak requirements here for probability. It is sufficient that a close actual possibility exists of the error having importance, c.f. Eidsivating Court of Appeal's ruling dated 27 May 2011 (Air Liquide Norway). Furthermore, it is clear that the error affected participation in the competition for the tenderer in question. The error prevented the tenderer from participating in the competition.
Our assessment is, thus, that there is without doubt an obligation to cancel the competition, c.f. the Procurement Act § 5 as well as the EU law court's legal practice.
If there are any comments or questions about the cancellation, the undersigned can be contacted via Mercell, or by email to pal.schiager@npd.no.
The Norwegian Petroleum Directorate was recently contacted by Mercell, who said that a tenderer was prevented from submitting a tender before the tender deadline. This was due to an error on Mercell's part and thereby also on the Norwegian Petroleum Directorate's part as the contracting authority. The Norwegian Petroleum Directorate has assessed the consequences this will have on the entire competition.