Claim for damages after public procurement - The Fosen-Linjen case

The Supreme Court judgment 27 September 2019, HR-2019-1801-A (case no. 18-77187SIV-HRET), civil case, appeal against judgment. 

I.
AtB AS (Counsel Goud Helge Homme Fjellheim) (Assisting counsel Anne Hesjedal Sending) v. Fosen-Linjen AS (Counsel Anders Tholfsen Thue) (Assisting counsel Christian Henrik Prahl Reusch), The Confederation of Norwegian Enterprise (Counsel Morten Goller) (third-party intervener)

II.
Fosen-Linjen AS (Counsel Anders Tholfsen Thue) (Assisting counsel Christian Henrik Prahl Reusch), The Federation of Norwegian Enterprise (Counsel Morten Goller) (third-party intervener) v. AtB AS (Counsel Goud Helge Homme Fjellheim) (Assisting counsel Anne Hesjedal Sending)

Participating in accordance with section 30-13 of the Dispute Act:
The State represented by the Ministry of Justice and Public Security (The Office of the Attorney General represented by counsel Helge Røstum)

A competition subject to regulations on public procurement was cancelled by the contracting authority due to an error in the competition base. A tenderer stating it would have won the competition if it had been carried out, claimed damages from the contracting authority.

The Supreme Court found that the contracting authority had a justifiable basis for cancelling the competition, so that neither of the tenderers could claim damages for loss of profit. The error in the competition base was however regarded as a "sufficiently serious breach" of the rules – a criterion that according to EEA law replaces the traditional standard of care principle – with the effect that the contracting authority had to cover the tenderer's costs.   

Justices: Matningsdal, Webster, Noer, Bull, Kallerud

A competition subject to regulations on public procurement was cancelled by the contracting authority due to an error in the competition base. A tenderer stating it would have won the competition if it had been carried out, claimed damages from the contracting authority.

The Supreme Court found that the contracting authority had a justifiable basis for cancelling the competition, so that neither of the tenderers could claim damages for loss of profit. The error in the competition base was however regarded as a "sufficiently serious breach" of the rules – a criterion that according to EEA law replaces the traditional standard of care principle – with the effect that the contracting authority had to cover the tenderer's costs.   

Read the whole judgment

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