Public procurement law

Competition and state aid law

Until now, the NCA has assumed that joint tenders between undertakings that are individually able to carry out the project alone, will normally have the purpose of restricting competition in the sense of the Norwegian Competition Act (“the Competition Act”).

The topic of consideration as to whether the cooperation is affected by the prohibition on anticompetitive cooperation in Section 10, first paragraph, of the Competition Act has primarily focused on whether the undertakings – without the cooperation – would have had a genuine opportunity to submit separate bids for the project. The assessment of whether the undertakings have had a genuine opportunity to carry out the project individually has relied on a strict, concrete and objective assessment that has resulted in a very restrictive approach to tender cooperation.

Furthermore, the NCA’s assessment of whether the project cooperation will result in socio-economic efficiency gains that offset the anticompetitive effects of the cooperation and the possibility of exemption provided for in Section 10, third paragraph, of the Competition Act, has been very narrow. This has led to a high level of uncertainty and frustration among undertakings wishing to take part in commercially desirable cooperation constellations and consortium agreements with clear efficiency gains to the benefit of the contracting entity, suppliers and consumers.

Changes to the European Commission´s guidelines

), the European Commission has addressed the framework for lawful tender and project cooperation. Section 10, first paragraph of the Competition Act prohibits cooperation between undertakings whose purpose or effect is to restrict competition. The prohibition means that, as a general rule, 

 are not allowed tocooperate on submitting a joint bid in a tender competition.

The basis of the assessment under the new guidelines is still whether the companies are able to submit bids separately. In its concrete and objective assessment of whether the undertakings are able to submit separate bids, the NCA will typically place emphasis on the undertakings’ resources in relation to the nature and size of the project. In addition to the companies’ actual and potential resources at the time of performance, the new guidelines allow for considerations such as financial and commercial risk (including investment needs) to be relevant. Consequently, a theoretical possibility of submitting separate bids is not sufficient to regard the undertakings as competitors. A realistic assessment must be made of whether the company would actually have carried out the specific project on its own.

Much needed relaxation of the possibility of entering into cooperation

Despite the companies being able to submit bids individually, the guidelines now clearly state that if the cooperation entails substantiable efficiency gains for the contracting entity that one of the suppliers is unable to achieve alone, including a lower price, better quality/selection and/or more efficient project implementation, the cooperation will be lawful pursuant to the exclusionary provision in Section 10, third paragraph, of the Competition Act (the efficiency defence). This lowers the high threshold that has been applied by the NCA for assessing when a project cooperation can produce efficiency gains that exceed the negative effects of the cooperation.

The new Horizontal Guidelines will form the basis for the NCA’s interpretation of Section 10 of the Competition Act and provide a much-needed relaxation of the possibility of taking part in tender and project cooperations in the face of strong competition from larger undertakings. There will be greater scope for cooperation between competitors on joint bids for projects and in the context of tender processes.

The European Commission’s new Horizontal Guidelines – Clarification of the boundaries for tender and project cooperation

Amdal has more than 27 years of experience within procurement law and is among Norway’s leading experts within this field. 

Amdal provides advice to clients in all stages of the procurement process and has in-depth knowledge of the Norwegian rules and regulations regarding public procurement, as well as the EU Directives on public procurement. She also has extensive experience within construction law.

By holding several directorships and key positions, Amdal has for a number of years contributed to the legal development within procurement law. The Norwegian Government appointed Amdal member of the Norwegian Complaints Board for Public Procurement for 8 consecutive years (2011-2019). She was also member of the Commission appointed by the Norwegian Government to propose new national rules on public procurement.

Gro Amdal has an exceptional degree of availability and competence combined with a commercial mindset making her legal counsel a vital part of our involvement in public procurement processes.

Lawyer Gro Amdal has over 26 years of experience in procurement law. Learn more about Gro or contact her at +4792881440 or gam@adeb.no.

Contact information

+47 928 81 440

gam@adeb.no

+47 23 89 40 00

Areas of expertise

Public procurement law

Competition and state aid law

Gro Amdal

News

The European Commission’s new Horizontal Guidelines – Clarification of the boundaries for tender and project cooperation

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