A government authority invited suppliers to submit a request to participate regarding a procurement in accordance with a restricted procedure. The authority chose to limit the number of candidates that may submit tenders in respect of each tender area. It was apparent from the invitation that the drawing of lots would be used as a last resort to differentiate qualified candidates if a large number of candidates still remained after the so-called limiting criteria had been applied.
The Supreme Administrative Court stated that is not apparent from the wording of the act nor from the preparatory works or case law what type of criteria and rules may be used to limit the number of candidates or whether drawing of lots is included amongst them.
The Supreme Administrative Court referred to the decision RÅ 2009, reported case no. 60, in which the Court earlier had approved the drawing of lots in conjunction with an open procedure because, inter alia, such a method is not regarded as benefiting one of the participants at the expense of any other. The Court stated that this view is also compatible with the now applicable Directive 2014/24/EU regarding public procurement, since in recital 93 in the Directive it is stated that, in awarding contracts, recourse to the drawing of lots as the sole means should be avoided.
The Supreme Administrative Court further stated that, in conjunction with a restricted procedure, it is not various tenders which are to be compared but, rather, the assessment concerns the suppliers’ qualifications in respect of the subject matter of the procurement and their ability to perform the contract to be awarded. This difference relative to the open procedure was, however, not considered to justify any other view as to whether it should be permissible to use the drawing of lots as a selection method, provided that the authority has first assessed the ability of the candidates to perform the contract based on enumerated qualifications and limiting criteria.
As far as had come to light in the case, the candidates that had been the subject of the drawing of lots had equivalent abilities to perform the contract. The Supreme Administrative Court therefore found that the government authority, by differentiating equivalent candidates by the drawing of lots at the end stage in order to limit the number of applicants to the maximum number set forth in the invitation, had not contravened the procurement regime.
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