2011/293: Norwegian Labour and Welfare Administration (NAV) – Dental Assistant Union

Go to Norwegian case summary and full text decision

(Illegal direct award)

Services performed for the public does not always constitute contracts within the scope of the public procurement regulations.

The case concerns a plea for illegal direct award regarding healthcare specialist opinions collected by the Norwegian Labour and Welfare Administration (NAV) pursuant to the National Insurance Act § 21. KOFA found that the collection of specialist opinions did not constitute contracts within the scope of the public procurement regulations, and that it therefore fell outside the scope of the procurement legislation.

Case 2011/293 concerned a basic condition in the public procurement regulation, namely that the rules only applies to public contracts. This is a question rarely brought before the Complaints board. The case concerned the collection of healthcare specialist opinions, with subsequent payment for these services. The services in question were healthcare specialist opinions collected by NAV pursuant to the National Insurance Act § 21-4. For practical reasons, NAV had in some geographic areas entered into agreements with certain specialist.

The plea of the Dental Assistant Union was that it constituted an illegal direct award to collect these services without a call for tenders.

NAV was obliged to collect these services pursuant to the National Insurance Act § 21-4. The obligation to give opinions when asked by NAV follows directly from this provision, and it was not a requirement for the parties to enter into an agreement or to negotiate the terms for the collection of services. In light of these considerations, and regardless of how the specialist opinions were collected, KOFA held that these services did not constitute a contract within the scope of the public procurement regulation. Thus, the entering into contracts regarding these services did not constitute illegal direct awards.