The Norwegian Public Roads Administration did not violate public procurement rules when rejecting a supplier
Supreme Court judgment 12 October 2022, HR-2022-1964-A, (case no. 22-023291SIV-HRET), civil case, appeal against judgment.
The State represented by the Ministry of Public Transport (The Office of the Attorney General represented by Kristin Hallsjø Aarvik) v. Flage Maskin AS (Counsel Eric Albert Rundhovde), The Norwegian Association of Heavy Equipment Contractors (intervener) (Counsel Morten Goller)
In a tender for the upgrading of a tunnel, the tender basis included a requirement that the supplier have sufficient experience of a relevant nature and difficulty level within traffic management. One of the tenders was rejected due to a lack of documentation with regard to this specialist area, see section 24-2 subsection 1 (a) of the Public Procurement Regulations. The Supreme Court, unlike the Court of Appeal, concluded that the tenderer had based itself on an interpretation of the qualification requirement for traffic management for which there was no basis, and that the requirement for sufficient experience of a relevant nature and difficulty level was not met. The Norwegian Road Administration was then correct to reject this provider. The claim for damages for positive contractual interest could thus not succeed. The State was not liable.
Read the whole judgment (Norwegian only)
Area of law: Public Procurement
Key paragraphs: 46, 50, 51, 54
Justices: Indreberg, Noer, Ringnes, Østensen Berglund, Høgetveit Berg