Go to instructions for filing complaints in advisory cases >>
Who can complain?
The complainant must have so-called standing. Suppliers who have participated in a public procurement competition have standing. The same is true for suppliers who wish to participate in a competition, but who think that they have, by illegal means, been excluded from participating.
Who can be complained about to the Board?
Complaints can be made about any businesses and agencies covered by the law on public procurement. That means state, county or municipal bodies or agencies, companies that can be described as "bodies subject to public law" and companies that have been given special rights in the water, oil, energy and transport sectors. More information about who is subject to the law is provided in the Public Procurement Regulations § 1-2.
Dismissal of cases or specific allegations in a case
For the Complaints Board to carry out its mission and be an efficient dispute resolution alternative to the courts, certain types of cases and certain types of arguments in cases must be dismissed by the Complaints Board or the Complaints Board Secretariat.
More about dismissing cases or arguments >>
| How to file a complaint with KOFA |
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The Complaints Board is a purely complaints body and needs a written complaint to initiate proceedings. We ask that the complaint be sent by mail or e-mail. The complaint must include the complainant's and respondent's name and address. In addition, it must state the type of procurement and the error the complainant believes the respondent has committed.
Go to instructions for filing complaints in advisory cases >>
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The appeals process for complainants and respondents
Deadlines
Reply contents
Document submission
Sending documents
Business secrets
Deadlines
It is important to note the following deadlines:
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For complainant |
- Within 5 working days, calculated from the date of the transmittal letter, the respondent must inform the Complaints Board and the complainant whether the contract has been signed. If the contract has been signed, the date it was signed should be provided. If the contract has not been signed, the respondent must, within the same deadline, announce that the contract signing shall be delayed, either until after the Complaints Board has completed its proceedings or until a certain specified date.
- Within 14 working days, calculated from the date of the transmittal letter, the respondent must submit a reply with the relevant documentation. The reply shall be sent to the Complaints Board with a copy to the complainant.
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- After the complainant has received the respondent’s reply, the complainant has 8 working days, calculated from the date of the reply, to submit any comments on the reply. The complainant’s comments on the reply shall be sent to KOFA with a copy to the respondent.
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- The respondent has 8 working days, calculated from the date of the comments, to respond to the complainant’s comments..
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- If the KOFA Secretariat hears nothing from the parties within 5 working days after the deadline for comments has elapsed, the case will in general be considered ready for decision. Working days are Monday through Friday, except public holidays.
- If the KOFA Secretariat recognizes the need for further comments or documentation when the case is taken up for decision, the Secretariat itself shall contact the parties. Any requests for a deadline extension are to be sent to the Secretariat, with a copy to the other party. The parties’ submissions should clearly state that the other party has been sent a copy.
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Content of the reply
The process is designed to make it unnecessary to use a lawyer. The Complaints Board is first and foremost interested in the following information from the respondent:
If the contract has been signed:
- The name of the parties to the contract
- The date the contract was signed
- Any extension of the original contract and how it was done
- The duration of the contract
- The estimated value of the contract
- A further explanation of why, if it is the case, the contract was signed without following the notification rules in the regulations on public procurement.
If several contracts have been signed, give the above information for each contract.
- An indication of the type of procurement concerned (goods, services, or construction contract) specifying the Common Procurement Vocabulary (CPV) code.
- A description of the procurement and the process.
- A description of the factual circumstances relevant to the complaint
- If the complaint is disputed, the justification for this position must be provided.
Submitting documents
To clarify the matter, the respondent shall submit the relevant documentation. Which documentation is relevant depends on the content of the complaint.
If it is argued that mistakes were made in the award evaluation, it may be appropriate to submit a copy of the offer that was selected. Copies of the other suppliers' offers are rarely relevant to the case handling and should not be enclosed unless the Complaints Board has specifically asked for them or the respondent believes that they are relevant.
In any case, the following documentation, with attachments, must be submitted:
- A copy of the announcement in DOFFIN and possibly TED database(s).
- A copy of the tender documents.
- A copy of the complainant's offer.
- A copy of the acquisition protocol.
- A copy of the minutes of meetings and recommendations.
- If the contract has been signed, a copy of it.
Obligation of the respondent to submit documentation
According to the Complaints Board Regulations § 2, the defendant has a duty to participate in the handing of the complaint, including forwarding all relevant documentation so that the Complaints Board can take a position on the matter. In some cases, however, the Law on Civil Procedure § 22-3 restricts the right to present evidence cf Complaints Board Regulations § 11. This applies to evidence that would violate the "statutory duty of confidentiality for those who have the information as a result of service or work for state or local government", etc. In practice, this means that the respondent in such cases must review the relevant documents with those who are entitled to protection of confidentiality in order to clarify to which information the protection applies. After this, the respondent must make an independent assessment of any information that has been claimed to be confidential, and the confidential information be removed before the documents are forwarded to the Secretariat and complainant. The party whom the confidential information concerns may also consent to allowing the information to be communicated to the complainant and the Complaints Board. It should be noted that only confidential information is to be removed, and that extensive removal of information would lead to a demand for the respondent to explain the extent of the information removal. Extensive removal of information could also lead to a request to the Ministry for consent to transfer the information, see Law on Civil Procedure § 22-3, second paragraph.
Access to confidential information
If the Secretariat recognizes the need to demand information that is subject to a statutory duty of confidentiality, the Secretariat may ask the Ministry for its consent to access the information, see the Civil Procedure Act § 22-3, second paragraph, cf Complaint Board’s Regulations § 11. If the Ministry gives its consent, the duty to maintain confidentiality will be imposed on the complainant and any representative of the complainant, cf Civil Procedure Act § 22-12, first paragraph, unless the Ministry’s consent specifies otherwise. If the Ministry refuses to give its consent, the secretariat will independently consider whether an order should nevertheless be given for the document to be disclosed under the provision of the Civil Procedure Act § 22-3, third paragraph, cf Complaint Board Regulations § 11. An order to disclose a document may be appealed to the Complaints Board chairperson, according to the Public Administration Act § 14. If the respondent is required to disclose information that is subject to a statutory duty of confidentiality, the Secretariat will impose on the complainant and any representative of the complainant a duty of confidentiality cf Civil Procedure Act § 22-12, second paragraph, cf Complaints Board Regulations § 11, and the Public Administration Act § 13b. Such duty of confidentiality implies that the complainant and any representative of the complainant may use the confidential information only to the extent necessary to safeguard the party's interests in the matter. Violation of confidentiality can be punished under the Criminal Code § 121.
Other consequences of excessive removal of information may be that the complainant requests a temporary injunction to stop the signing of the contract, and a risk that the Complaints Board must dismiss the case, arguing that there is an insufficient factual basis to decide it. This could mean that the matter must be dealt with by the courts.
If the complainant submits documentation containing operating or business secrets relating to the complainant itself and the complainant does not wish them to be disclosed to anyone other than the Complaints Board and respondent, this should be clearly stated.
Sending of documents
We ask that documents sent to the Complaints Board not be placed in binders, not be copied on both sides, and not be stapled together. Both the complainant and respondent must submit one set of the documents to the Complaints Board and one set of the documents to the other party.