2013/103 The Norwegian Parliament's administration – Inventura AS
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The case concerns the use of meetings or interviews to identify the economically most advantageous tender. The Complaints Board found that the rules on public procurement does not in principle preclude this approach, and that the award criteria did not constitute a breach against the ban on negotiations in open procedures, but strict rules had to be applied to ensure transparency.
The Norwegian Parliament's administration (NPA) awarded a contract for public procurement consultancy services following an open procedure. One of the award criteria was "Portrayal of service/impression from meeting". According to this criterion, the consultants offered to perform the contract would be invited to a meeting with the NPA. The purpose of the meeting, NPA explained, was to get a better impression of how the candidates would execute the service. It was stated that no negotiations would take place, and that no contract conditions would be discussed. Finally, it was specified that the evaluation of the criterion would take into account sub-criteria such as structure, tool-box, experiences and time.
The complainant, Inventura AS, raised several pleas regarding this criterion. Firstly, Inventura claimed that the criterion constituted a violation of the ban on negotiations in open procedures, because the evaluation of the tenders were based on non-written evidence. The execution of the meetings, Inventura contended further, was in in conflict with the principles of equal treatment and transparency. The reason for this, Inventura claimed, was that the NPA lacked a standardized set of questions to ask the candidates, and that they did not take any notes from the meeting. Inventura also claimed that the award criterion was illegal because it was unclear how the NPA would assess their impression of the candidates from the meetings. As such, the criterion conferred upon the contracting authority an unrestricted freedom of choice.
The Complaints Board noted that the human resources offered was the main input factor of the service in question, and that – for the purpose of evaluation – not all capabilities relevant in finding the most economically advantageous tender could be documented in writing. Non-written evidence, such as oral references and the inspection of goods, was accepted in the Board's previous case law, as long as the results of the evidence later was put in writing. On this background, the Board found that award criterion in itself did not constitute an infringement of the ban on negotiations. The Board did however find that evaluating tenders in such a fashion meant that strict rules had to be applied to ensure transparency, and mentioned some measures that could be advisable for this purpose.