The Swedish Competition Authority is the supervisory authority for public procurements, which means that we investigate if contracting authorities observe the legislations on public procurement and systems of choice. When an authority does not observe the legislation, we can make supervisory decisions. We can also institute claims on procurement fines in court when an authority has performed an illegal direct award.
Our supervisory operations
In our supervisory work, we investigate and decide if contracting authorities observe the regulations on public procurement.
The goal of our procurement supervision is to provide guidance and incentives for changed behaviour in the areas where this is needed. In this way, we strive for uniform application of the rules. We also contribute with clarification when the procurement legislation does not sufficiently clearly explain the framework which the contracting authorities must relate to.
When we review authorities, we will communicate with them both verbally and in writing. The purpose of the first contacts is often for us to get information about what has happened in the case in question. When necessary, we will also take other investigatory steps, such as contacting other stakeholders, meeting with representatives of the authority or visiting the contracting authority under review.
If we observe breaches of the procurement legislation, we can deal with this using various means, for instance through claims regarding procurement fines or through supervisory decisions.
We may institute claims on procurement fines in court against authorities that have performed illegal direct awards. An illegal direct award is a contract concluded by an authority with a supplier/service provider without observing the requirements on publication in the procurement legislation. The fine is anywhere between SEK 10,000 and SEK 10 million, but at most ten percent of the contract value. The procurement fine goes to the state.
When we choose to prioritise an errand, we can institute a claim for a procurement fine on our own initiative. In some cases we are obliged to institute a claim. These are cases where a court has decided not to declare void a contract despite it having been concluded through an illegal direct award. A court may do this if it is necessary for the public that the purchase is made. An example is if the court has judged it impossible for the authority to be without the goods or services during the time it would take to perform a public procurement. The Swedish Competition Authority is also obliged to institute a claim for a procurement fine when the court has determined that a contract shall not be declared void, despite it having been concluded in breach of the rules on standstill periods.
In a supervisory decision, the Swedish Competition Authority will criticize the relevant authority for not having observed the regulations on procurement. We will also state the reasons and the legal bases for the decision. The decision is a form of public statement. Supervisory decisions are not combined with any fines or other sanctions.
A supervisory decision can be made for all types of breaches of the regulations on public procurement. The decisions encompass mainly matters where procurement fines are not possible, for instance because the time limit for making claims has passed. Supervisory decisions are the only tools available to the Swedish Competition Authority when reviewing the laws on freedom of choice.