Roschier Insights Seminar, key takeaways: Sufficient information is crucial
During the past year, a number of decisions in the area of public procurement have been issued by competition authorities and courts. Various exceptionally large and (in terms of benefit to the public) substantial, publicly-funded investment projects are in progress in Finland. In order to carry out and participate in these demanding projects, knowledge is required of interfaces of different areas of law. Roschier hosted a breakfast seminar for clients on the current case law in the areas of public procurement and competition neutrality.
Roschier’s experts, Senior Associate Juhani Matinlassi and Partner Ami Paanajärvi addressed relevant interfaces of procurement law and competition law, such as consortiums bids versus bidding cartels, framework agreements and contract changes.
Consortiums bids versus bidding cartels: Compliance with procurement law on the one hand and competition law on the other is based on tenderers’ self-assessment.
A lively discussion at the seminar focused particularly around the question of when a candidate/tenderer is able to bid individually. This is a case-by-case assessment, where one of the relevant factors appears to be the adopted procurement model (models encouraging bids on the entire tender as opposed to partial bids).
Framework agreements: Key questions in recent case law focus on the information contracting authorities have given to the tenderers. Contracting authorities must provide sufficient information on among other things the contracting authorities taking part in the arrangement and the estimated total value of the framework agreement.
Contract changes: This is a complex issue with lots of current case law, in particular relating to ICT procurements. Changes to the procurement contract often lead to the procurement procedure being considered erroneous. Key questions considered by the FCCA and the Market Court appear to focus on whether a contract amendment would have affected the attractiveness of the tendering and whether it would’ve been possible for the contracting authority to change the contracting party.