There are currently a number of proposed changes to the regulations of importance in the area of procurement. The proposed changes to the law are at different stages – a number of proposals are currently being referred for consultation, whereas other fully-studied proposals have been submitted by the Government to the Riksdag. It is also proposed that the changes enter into force at various different times. Below is a summary of the main proposals.
GOVERNMENT BILL 2021/2022:120 – A MORE EFFECTIVE REVIEW
The proposed changes to the law aim to make court proceedings in public procurement cases faster and more predictable for both procuring public authorities and for suppliers.
- It is proposed that an urgency requirement be introduced for review cases. The aim is to ensure that cases are normally decided on within a few months. Nevertheless, it is still the court that decides when a case has been sufficiently investigated in order for a ruling to be issued.
- It is also proposed that limitation periods be introduced in review cases, both with regard to review of a procurement and review of the validity of the agreement. In the Administrative Court, the supplier may not cite new circumstances more than two weeks from the date on which the application was received by the Administrative Court, unless the supplier credibly establishes that it was unable to cite the circumstance earlier or otherwise has a valid excuse for not doing so. In the Administrative Court of Appeal, neither the supplier nor the public authority may cite a new circumstance unless the party credibly establishes that it was unable to cite the circumstance in the Administrative Court or otherwise has a valid excuse for not doing so. The limitation periods only apply to new circumstances and not when citing new evidence.
- The time limit for applying for a review of the validity of an agreement which is not subject to the Directive is shortened from six months to 30 days if the public authority has issued a contract award notice on the procurement.
- The time limit for bringing an action for damages is changed from within one year from the moment when an agreement has been entered into between the procuring authority and a supplier to within one year from the date when the claimant became aware of or should have become aware of the fact that an agreement had been entered into. However, if a agreement has been declared invalid by a court, the action may nevertheless always be brought within one year from the moment when the ruling became firm and final.
- There is no proposal to introduce any application fee or liability for procedural costs in review cases.
- There is also a proposal that a procuring public authority should not be permitted to allow a judgment older than five years or events older than three years to form a basis for excluding a supplier due to offences or misconduct in general.
It is proposed that the new rules enter into force on 1 July 2022.
DS 2021:31 – PROPOSAL FOR AN OBLIGATION TO TAKE CERTAIN SOCIAL INTERESTS INTO ACCOUNT IN PUBLIC PROCUREMENT
The proposal is based on making use of the power of public procurement in order to contribute to the sustainability agenda. It is noted that current procurement legislation allows a great deal of scope for taking social interests into consideration in various ways. However, it is based on freedom, which is considered to be a weakness. According to the proposal, procuring public authorities must therefore have an obligation to take social interests into consideration in public procurements, as set out in the summary below.
- Instead of a situation whereby procuring public authorities “should” take environmental, social and labour law considerations into consideration, as at present, in future procuring public authorities “must” take certain social interests into consideration.
- It will be obligatory to take the climate into consideration in all procurements. This is partly because this aspect is considered relevant at all times and partly in order to clarify that the environment can mean more than just the climate.
- In addition to the climate, procuring public authorities must take the environment, human health, animal care and social and labour law aspects into consideration when they are relevant to the purpose of the procurement. For these aspects, a link with the procurement in question is therefore required.
- There is also a proposal for an obligation for procuring public authorities to decide on guidelines on how to take the above interests into consideration. The draft text of the law does not specify in more detail how these must be worded and it is proposed that the National Agency for Public Procurement be assigned the task of producing guidance on more detailed contents for the guidelines. However, some suggestions on what the guidelines may contain are being put forward, including prioritised areas to take into consideration, division of responsibilities and roles, as well as management commitment and identification of risks and risk analysis. The importance of setting clear, measurable goals is also emphasised.
- It is proposed that the rules apply to all procurements under LOU [the Public Procurement Act], LUF [the Act on Public Procurement in the Utilities Sectors] and LUK [the Act on Procurement of Concessions], including those not subject to the Directive, with the exception of direct procurements.
It is proposed that the new rules enter into force on 1 July 2022.
GOVERNMENT BILL 2021/2022:135 – IDEA-DRIVEN WELFARE
The proposals in the bill aim to increase the ability of idea-driven organisations to provide publicly-funded welfare services. Municipalities, regions and state authorities will therefore be able to benefit from the expertise, experience and other resources of idea-driven organisations to a greater extent than previously.
- The bill proposes that a new law be introduced whereby idea-driven organisations that carry on publicly-funded welfare activities should be able to be entered in a special register. The introduction of the option to register is not aimed at excluding any idea-driven organisations, but to make them visible by differentiating them from public and commercial operators. Registration will be voluntary.
- In order to be registered as an idea-driven organisation, the Government proposes that an organisation be required to carry on or intend to carry on publicly-funded welfare activities. Furthermore, the aims of the organisation must be exclusively directed towards the public good. The organisation must not be controlled by the state, a region or a municipality and transfers of value from a registered idea-driven organisation will only be permitted to take place to other registered idea-driven organisations and to research.
- It is also proposed that procuring public authorities be given the ability to reserve the right to participate in procurements of certain welfare services for idea-driven organisations whose aims directed towards the public good help fulfil the purpose of the service being procured. The Government considers that an option to reserve procurements for idea-driven organisations would help make better use of these organisations’ expertise and capacity by enabling them to participate in welfare to a greater extent. The services proposed by the Government for inclusion in the reservation option are sorted under the headings of Healthcare, Social Services and Related Services as well as Administration in Social Services and Education Administration and Healthcare Administration.
- Furthermore, it is proposed that a provision be inserted in the Act (2008:962) on System of Choice in the Public Sector to enable procuring public authorities to reserve the right to participate in a system of choice for idea-driven organisations to the same extent.
It is proposed that the new law and other proposed changes enter into force on 1 January 2023.
DS 2022:5 – MORE EFFICIENT PROCUREMENT SUPERVISION
It is proposed that the Swedish Competition Authority be granted a number of extended powers with regard to penalties and investigation in procurement supervision, see below.
- The Swedish Competition Authority will be permitted to make decisions on a procurement fine at first instance, i.e. without an procedure involving an application to a general administrative court.
- The procurement fine will not only be imposed in the event of illegal direct procurement, but also in the event of breaches of the following obligations (i) issue of a contract award notice, (ii) publication of notices in a registered database for notices, (iii) the documentation obligation, (iv) preparation of individual reports and (v) the obligation to give reasons why a contract should not be awarded in separate parts.
- According to the proposal, the obligation to document a procurement must be fulfilled no later than 30 days after the public authority has entered into an agreement or made a decision to discontinue the procurement.
- It is proposed that the ceiling for the amount of the procurement fine be increased from SEK 10 million to SEK 20 million. As previously, the procurement fine will amount to a minimum of SEK 10,000, but may not exceed 10 per cent of the value of the procurement.
- According to the proposal, the deadline for deciding to impose a procurement fine will be extended to two years instead of one year from when the agreement was entered into. If the procurement in question is discontinued, the time limit is calculated from the date of the decision to discontinue the procurement.
- The Swedish Competition Authority will also be able to aim investigation orders at suppliers. The Swedish Competition Authority will also be able to order procuring public authorities to decide on guidelines for direct procurement and guidelines on the obligation to take certain social interests into consideration (if the proposals in Ds 2021:31 are implemented, see above).
- Orders issued by the Swedish Competition Authority to suppliers and procuring public authorities may be associated with penalties.
- The proposals apply to procurements in accordance with LOU, LUF, LUK and LUFS [Act on Defence and Sensitive Security Procurement].
It is proposed that the new rules enter into force on 1 February 2023.