Sweden: Swedish Competition Authority on

in short

As of last Friday, 1 November 2024, the Swedish Competition Authority has started to implement its declaration on free access to procurement documents. According to the Swedish Competition Authority, this means that the contracting authority is now expected to offer standard contracts such as AB04 and ABT06 free of charge to bidders in all public procurement processes.

• The decision prompted discussion and concerns about increased administrative burdens and costs for contracting authorities and bidders. Additionally, there are concerns that adoption of standards that encourage predictability and transparency may decrease.
• Although not legally binding on courts, the Swedish Competition Authority’s positions are intended to guide the public and clarify the assessment of specific legal issues.

In a statement of 28 June 2024, the Swedish Competition Authority argued that reference in procurement to documents that are not freely available violates Chapter 10, Section 7 of the Swedish Public Procurement Act. The Swedish Competition Authority stresses that procurement documents such as standard agreements must be made available immediately, completely and free of charge to meet legislative requirements. The Swedish Competition Authority says this is essential to ensure transparency and equal treatment in public procurement. Free and unrestricted access to procurement documents also lowers the threshold for participating in public procurement, especially for small and medium-sized enterprises, and facilitates more bidders to submit competitive bids.

The Swedish Competition Authority noted that contracting authorities sometimes refer to procurement documents that are not freely available, such as standard agreements. This breaches the requirement for free access to procurement documents and may cause practical problems for bidders who do not have free access to these documents. Bidders who do not fully read the procurement documents may submit bids that are inconsistent with their ability or willingness.

According to the position of the Swedish Competition Authority, there is no legal basis for exceptions to the applicable requirements even if the access costs are negligible or the bidder should be familiar with the standards. The Swedish Competition Authority noted that the Public Procurement Directive, which is the basis of the Swedish Act, only allows exceptions in certain circumstances, such as when documents contain confidential information or require special technical equipment to access them.

The provisions of the Swedish Public Procurement Act must be interpreted in accordance with the fundamental principles of public procurement law: non-discrimination, equal treatment, proportionality, transparency and mutual recognition. The principle of transparency means that procurement documents must be clearly drawn up and contain all requirements. Information related to procurement has to be made public.

The Swedish Competition Authority considers that documents that describe or identify the content of a procurement (eg contract terms) constitute procurement documents and are governed by the requirements set out in Chapter 10, Section 7 of the Swedish Public Procurement Act. Neither the Public Procurement Directive nor the Swedish Public Procurement Act, its travaux préparatoires and case law support the requirement to restrict free access to procurement documents. The clause does not provide for exceptions where the cost of obtaining procurement documents is negligible or a one-time cost or where it can be assumed that the bidder is familiar with the standard or standard contracts.

The Swedish Competition Authority will monitor compliance with these rules and may criticize contracting authorities that do not comply with the requirements. The Swedish Competition Authority also considers that failure by the contracting authority to comply with these provisions may constitute grounds for a bidder to apply for review of the relevant procurement.