Access to tenders and the procurement record

Access to tenders (innsyn i tilbud) means that you get to see the tenders other suppliers submitted in a public competition, and the contracting authority's procurement record. The right comes from the Freedom of Information Act (offentleglova): anyone may request access to the case documents of a body the Act applies to (§ 3). On this page, § references with a hyphen, such as § 7-3, are to the Public Procurement Regulations (anskaffelsesforskriften), and other bare § references are to the Freedom of Information Act unless another act is named. The Regulations refer to the Freedom of Information Act for access to the documents in a procurement (§ 7-3), and according to DFØ (the Norwegian Agency for Public and Financial Management) the right applies to all procurements by these contracting authorities, whatever their value. A request for access can cover all the documents in the procurement, for example the tender documents, the tenders, the record and the contract (DFØ).

The Freedom of Information Act applies to central government, county authorities and municipalities, and to independent legal entities where central government, a county authority or a municipality directly or indirectly holds more than half of the votes in the highest body, or can elect more than half of its voting members (§ 2 (1)). The last group does not include businesses that mainly carry on commercial activity in direct competition with, and on the same terms as, private businesses. Some named companies are exempted by the Freedom of Information Regulations (offentlegforskrifta § 1). Contracting authorities not covered by the Freedom of Information Act only have to give access to the contract itself, and only for supply and service contracts of at least NOK 11.6 million and works contracts of at least NOK 96 million, excluding VAT (§ 7-3; DFØ). The exemptions in the Freedom of Information Act also apply to them.

Before the supplier is chosen, the contracting authority may exempt the tenders and the record from access (§ 23 (3)). The exemption covers only the tenders and the record, not other documents in the procurement, and only until the choice is made. After that, the tenders and the record are as a starting point public, also during the standstill period (karensperiode) (DFØ).

Information subject to a duty of confidentiality is exempt from access (§ 13). In procurements, the duty of confidentiality in the Public Administration Act (forvaltningsloven) applies, and for contracting authorities not covered by that Act, its § 13 applies correspondingly (§ 7-4). Trade secrets (forretningshemmeligheter) matter most: information on technical devices and procedures, and on operational or business matters, which for competitive reasons it is important to keep secret in the supplier's interest (Public Administration Act § 13 (1) no. 2). The duty of confidentiality applies to the information, not to the document as a whole. The rest of the document may only be exempted when the parts that can be released would give a clearly misleading picture, when separating them out would take an unreasonable amount of work, or when the exempted information is the main part of the document (§ 12).

Access lets you see how the winner solved the task and what the contracting authority gave weight to. You can use it both to judge whether the choice was right and to write a better tender next time, also in competitions you did not take part in. Read what you get together with the reasons in the notification of the choice of supplier; see the page on the award decision.

In competitions under Part II, Part III and Part IV of the Regulations, the record must, to the extent the information is relevant, show among other things who submitted tenders, who was rejected and why, who was chosen, the reasons for the choice and the value of the contract (§ 10-5, § 25-5 and § 30-1 (7)). Part II applies from NOK 1.3 million up to the EEA thresholds (except health and social services), and to special services (særlige tjenester) from NOK 1.3 million with no upper limit; Part III applies at or above the EEA thresholds for supply, service and works contracts. In procurements under Part I alone, from NOK 500,000 up to NOK 1.3 million and for health and social services below NOK 8.7 million, essential matters must be recorded or gathered in a record, with no list of what it must contain (§ 7-1 (3)). The record therefore does not necessarily show the points per criterion. Advice: ask for the evaluation or the scoring as well. The contracting authority may exempt documents prepared for its own internal case preparation, but not the part that contains the final decision (§ 14), and must consider giving more access than the Act requires (§ 11).

Advice: if you are considering challenging the choice, request access the same day you receive the notification. The standstill period can be short, and a request for access does not stop it running; see the page on the standstill period.

For your own tender the question is the reverse: competitors can request access to it, and you cannot appeal a decision to grant access (§ 32 (1)). The contracting authority must itself assess what is confidential, but your view is a good starting point (DFØ). Advice: mark in your tender which information you consider trade secrets, and write briefly why it would harm you competitively if it became known. Redact precisely, not whole paragraphs. DFØ writes that it can be wise for contracting authorities to ask for a redacted version of the tender when it is submitted, and if the contracting authority does so, that is where you speak up. The duty of confidentiality does not prevent information from being used when no legitimate interest (berettiget interesse) requires it to be kept secret, for example when it is generally known or generally available elsewhere, such as customers you have published on your own website (Public Administration Act § 13 a no. 3; DFØ).

A municipality has run a competition for IT user support, estimated at NOK 4 million excluding VAT. An IT company comes second and receives the notification of the choice of supplier on a Monday, with a standstill period of 10 days. The same day, the company sends an email to the municipality's main email inbox: “We request access under the Freedom of Information Act to the tender from the selected supplier and to the procurement record in the competition for IT user support, case number 2026/123.” The company does not say why.

The municipality asks the selected supplier to say what it considers trade secrets, assesses the answer itself and grants access after three working days. The hourly rates and the description of the supplier's own monitoring tool are redacted. The total price, the staffing plan and the references are not. The record shows that one tender was rejected and why, but not the points, so the company also asks for the evaluation. With the documents in hand, the company and a lawyer consider whether to apply to the court for interim measures (midlertidig forføyning) before the standstill period ends.