LA PARTNERS has successfully represented a large number of contracting authorities in a fundamentally important procurement case in the Supreme Administrative Court. The LA PARTNERS team consisted of Maria Lidbom, lawyer and partner, and Alexander Rappe, assistant lawyer.
The main issue in the case was whether there were conditions for using direct procurement due to extreme urgency in a situation where an advertised procurement has been delayed by a review process. During the review, several contracting authorities directly procured the services in question by entering into an agreement with the supplier awarded the framework agreement in the reviewed procurement. The existing supplier applied for a review of the validity of the directly procured agreement.
In its judgment, the Supreme Administrative Court states that in the case of direct procurement due to extreme urgency, it is the procurement itself, i.e., the subject of the contract, which must be absolutely necessary for the exemption provision to be applicable. This requires that the procurement takes place in order to meet an urgent need that has actually arisen or can be expected to arise shortly. The Supreme Administrative Court found that the services in question would meet such a need.
The Supreme Administrative Court considered that there was an urgent need for the authorities to undertake the procurement, as there was no possibility to ensure delivery of the services under the existing framework agreement and no time to carry out a procurement through an advertised procedure. The authorities had begun the reviewed procurement in good time, and the urgency that arose had to be considered as due to an unforeseen circumstance in the form of the protracted review process. There had thus been conditions for using direct procurement due to extreme urgency. According to the Supreme Administrative Court, the agreement would therefore not have been annulled.
– The judgment is of great importance to all contracting authorities and entities, as it clarifies that there may be a particular urgency to procure directly in a situation where a procurement has been reviewed and that in such a situation it may be permitted to procure directly regardless of whether the direct procurement takes place with existing, winning or other suppliers, comments Maria Lidbom. The judgment entails a clear guidance in that it is the object of the contract itself that determines whether an acquisition is absolutely necessary. The ruling is of great practical importance and clarifies the application of a legally regulated exception, concludes Maria Lidbom.
The ruling was announced on December 13, 2019 and is published on the Supreme Administrative Court’s website.