A supplier that considers itself to have been harmed or is at risk of being harmed in a public procurement is entitled to apply to an administrative court for review of the procurement.
The National Board of Health and Welfare carries out a public procurement of framework agreements for, inter alia, research-related services within catastrophe medicine. Umeå University submitted a tender. The National Board of Health and Welfare decided, however, that the engagements would be awarded to other tenderers.
Umeå University applied for review to the Administrative Court in Stockholm. The administrative court disallowed the university’s application by reference to the fact that the university had no right of action. The university appealed to the Administrative Court of Appeal in Stockholm which was of the opinion that the university had a right of action and overturned the decision of the administrative court and remanded the case to the administrative court for an examination on the merits.
In its judgment, the Supreme Administrative Court considered initially that the procurement rules are applicable to the public procurement in question. In addition, Umeå University is a supplier on the relevant market and has, as a starting point, the same right as other suppliers to apply for review of procurements carried out on this market.
The Court further considered that the National Board of Health and Welfare and Umeå University are both state administrative agencies under the Government. Thus, they are part of one and the same legal entity, the State, and cannot enter into agreements with one another which are binding according to civil law. According to the case law of the European Court of Justice, the procurement rules are applicable only to agreements entered into between a contracting authority and a natural or legal person independent of that authority. The procurement rules are thus not applicable to a procurement between the National Board of Health and Welfare and Umeå University.
A condition also for the right of action is that the supplier has or has had an interest in entering into an agreement in the relevant procurement. From this follows that the procurement procedure must be able to result in an agreement which is legally binding between the contracting authority and the supplier. This is not possible when the contracting authority and the supplier are part of the same legal person. Accordingly, the university has no right of action. For these reasons, the Supreme Administrative Court affirmed the decision of the administrative court to disallow the University’s application.
Read the judgment here: