New Case-law Regarding The Limitation Period In Review Cases

• Published date: 24 January 2024
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Government Contracts, Procurement & PPP, Trials & Appeals & Compensation
• Law Firm: Lindahl
• Author: Ms Annika Andersson, Sarah Ottosson and Linnea Tornberg

The regulation on limitation in Chapter 20, section 5(b) of the Public Procurement Act (Lagen om Offentlig Upphandling - LOU)/Act on Public Procurement in the Utilities Sectors (Lagen om offentlig upphandling - LUF) applies to procurements begun after July 2022. The provision means that a supplier must state the circumstances cited by the supplier as a basis for its action within three weeks of the date on which the application for review was received by the administrative court. Circumstances cited by the supplier after the three-week period may only be taken into consideration by the administrative court if the supplier credibly establishes that it was unable to cite the circumstance earlier or otherwise had a valid excuse for failing to do so. In its judgment of 3 October 2023 in case no. 1791-23, the Administrative Court of Appeal in J'nk'ping provided welcome guidance on how the limitation period should be interpreted and applied in practice.

BACKGROUND TO THE CASE

A supplier applied for a review of a municipality's procurement of dishwashing and flushing disinfectors. The company argued that the successful tender did not meet obligatory requirements and that a new evaluation should be carried out in which the successful supplier's tender should not be taken into consideration.

THE ADMINISTRATIVE COURT'S JUDGMENT

In its judgment, the Administrative Court stated that, as a prerequisite for the court to decide to intervene in a procurement, a fault in the procurement must have meant that the applicant had suffered or could suffer damage. The supplier applying for review is responsible for clearly stating which circumstances it bases its action on.

The Administrative Court also found that the complainant supplier only stated that it had suffered damage as a result of defects in the procurement after the limitation period in Chapter 20, section 5(b) LOU had expired and had not given any reasons why these circumstances should be taken into consideration after the time limit had passed. The information was therefore not taken into consideration by the Administrative Court.

The Administrative Court rejected the application for review without examining the case.

THE ADMINISTRATIVE COURT OF APPEAL'S JUDGMENT

The supplier appealed the judgment before the Administrative Court of Appeal, arguing primarily that the case should be referred back to the Administrative Court for examination. The supplier argued that it had stated, within the limitation period, the...