No obligation to reject supplier after tender competition in Hammerfest

Hammerfest Municipality and the Norwegian Coastal Administration conducted an open tender procedure for improvement works at the ports of Hammerfest and Forsøl. NCC Norge AS was awarded the contract. NCC proposed a corrosion protection solution that deviated from the requirements set out in the tender documents. One of the other tenderers, Consto Anlegg Nord AS, brought legal proceedings, contending that NCC’s tender ought to have been rejected. Consto argued that technical specifications—particularly those based on the industry standard NS 3420—must always be regarded as absolute requirements, thereby imposing an unconditional obligation on the contracting authority to reject the tender.

The Supreme Court held that the Norwegian Coastal Administration was not under an obligation to reject NCC’s tender. This conclusion is consistent with the rulings of both the District Court and the Court of Appeal.

The Supreme Court found that, under Norwegian law, not all breaches of technical specifications constitute deviations from absolute requirements, even where such specifications are based on industry standards. Following a detailed examination of the case law of the Court of Justice of the European Union (CJEU), the Court concluded that this interpretation is consistent with the applicable rules under EEA and EU law.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Key paragraphs: 56, 63, 81-82

Area of law: Public Procurement. Section 24-8 subsection 1 (b) of the Procurement Regulations. Article 56 of the Procurement Directive. 

Justices: Webster, Bergh, Østensen Berglund, Sivertsen, Lund