Claim for damages after cancelled tender competition must be reconsidered

Two municipalities announced a competition for a framework agreement on sludge disposal. The only award criterion was price. After a tenderer had been awarded the contract, the competition was canceled due to the lack of clarity in the tender basis. A new competition was held, which ended with the contract being awarded to another tenderer. The first tenderer demanded compensation for positive contractual interest, see section 10 of the Procurement Act, and was upheld in the District Court and the Court of Appeal. The hearing in the Supreme Court was limited, as the first competition was to be considered cancelled. The Supreme Court took as its starting point that liability for positive contractual interest may arise in connection with errors in tenders, even if no contract has been entered into. However, it is the legitimate expectation of the award of a contract that deserves protection. There is no such expectation when, according to the set of rules, the competition should have been cancelled as illegal and the contract in question could not have been entered into legally. The consideration of general deterrence could not lead to any other result. The Court of Appeal's judgment was set aside.

Read the ruling in its entirey (Norwegian only)

Area of law: Public procurement 

Key paragraphs: 59-63

Justices: Indreberg, Bull, Bergsjø, Arntzen, Thyness