Competitive procedure with negotiation

A competitive procedure with negotiation (konkurranse med forhandling) is a procurement procedure in which the contracting authority negotiates with suppliers on their tenders before the contract is awarded. Suppliers submit an initial tender, the contracting authority negotiates with them, and the competition ends with a common deadline for final tenders. In an open or restricted procedure (anbudskonkurranse) under Part III of the Public Procurement Regulations (anskaffelsesforskriften), negotiation is not allowed.

The procedure and its conditions are in Part III of the Regulations, which applies to supply, service and works contracts at or above the EEA thresholds. The § references on this page are to the Regulations unless another instrument is named. Under Part III, the contracting authority may always choose an open or restricted procedure, but may only use a competitive procedure with negotiation with prior publication of a contract notice when at least one of the conditions in § 13-2 is met: readily available solutions must be adapted; the procurement includes design or innovative solutions; the nature, the complexity, the legal or financial make-up or the risks make negotiation necessary; the technical specifications cannot be described precisely enough by reference to a standard or a similar technical reference; or an open or restricted procedure has produced only unacceptable tenders. DFØ (the Norwegian Agency for Public and Financial Management) writes that the conditions are not strict and will probably be met when the contracting authority has a genuine need to negotiate, but that the procedure cannot be used to buy standard goods or standard services that are generally available on the market. Without prior publication, the procedure is a narrower exception with its own conditions (§ 13-3; the directive calls it the negotiated procedure without prior publication).

In Part II, from NOK 1.3 million up to the EEA thresholds (except health and social services), and for special services (særlige tjenester) from NOK 1.3 million with no upper limit, the conditions do not apply. There the procedures are called the open and restricted tender competition (tilbudskonkurranse), and after the tender deadline the contracting authority may hold a dialogue with the suppliers, including negotiations; see the page on the open and restricted procedure. From NOK 500,000 up to NOK 1.3 million (Part I), and for health and social services, there are no rules on which procedures may be used. Negotiation is then possible: under Part IV the contracting authority must set out in the procurement documents how the competition will be conducted (§ 30-1 (1)), and in Part I the fundamental principles in Public Procurement Act § 4, in particular predictability and equal treatment, mean that it should state in advance that it will negotiate.

In Part III, a competitive procedure with negotiation with prior publication runs in two stages: anyone interested may submit a request to participate, the contracting authority checks qualification and selects at least three if there are enough, and only those invited submit tenders. The negotiations may cover all aspects of the tender, but not the award criteria or the minimum requirements (absolutte krav, which tender documents often call minstekrav or minimumskrav). They end with a common deadline for final tenders, and negotiating on the final tenders is not allowed.

Advice: treat your initial tender as if it could be your final one. In Part III, that advice rests on three rules. The contracting authority may award the contract on the basis of the initial tenders without negotiating, if it has reserved that possibility in the contract notice or in the invitation to confirm interest. If the number of tenders is reduced in successive stages, that is done by applying the award criteria, and the first reduction can come before the negotiations start if the contracting authority has reserved that. And the minimum requirements are fixed, because the contracting authority cannot negotiate on them, so meet them in your initial tender.

A deviation in your tender is not always the end. In a competitive procedure with negotiation, the contracting authority may wait until the negotiations are over before it rejects, among other things, tenders that cannot be regarded as binding and deviations or ambiguities that are not insignificant. Material deviations (vesentlige avvik) are not mentioned in that provision. DFØ considers that the legal sources taken together indicate that they too can be negotiated away, but writes that there is some uncertainty, and the final tender can in any case not contain a material deviation. Advice: do not count on being able to correct a material deviation in the negotiations. Your qualification is assessed first, when you request to participate, but rejection can happen at any stage, and the contracting authority must check the selected supplier before the contract is awarded.

In the negotiations you must be treated equally with the others, and the contracting authority must not give the others access to your solutions or confidential information without your consent to that specific information. DFØ writes that the negotiations must be genuine: you must be told of matters that will be of substantial or decisive importance in the evaluation and be allowed to revise your tender, but the contracting authority has no duty to point out every weakness. In Part III, as a supplier concerned you may ask for a written account of how the negotiations were conducted, and it must come as soon as possible and no later than 15 days after the contracting authority received your request (§ 23-10 (3)). Since 1 July 2026, only undertakings established in Norway or another EEA state, or in a state that is party to the WTO Agreement on Government Procurement (GPA) or another agreement binding Norway, have rights under the Act and the Regulations, and the latter only to the extent that agreement gives them rights (Public Procurement Act § 3). Other undertakings may take part in competitions but cannot rely on those rights.

A county authority (fylkeskommune) is buying a case management system for NOK 15 million. That is above the EEA threshold of NOK 2.5 million for county authorities, so Part III applies, and because the system must be adapted to the county authority's other specialist systems, one of the conditions for a competitive procedure with negotiation is met. The contract notice is sent to TED (Tenders Electronic Daily, the EU's online journal for public procurement) on 3 February 2027, and the deadline for requests to participate is set at 6 March, 31 days later. The county authority has reserved the right to reduce the number of tenders in successive stages and to award without negotiating. You submit an initial tender and go through as one of three. In the negotiation meeting you learn that your training plan is pulling your score down. You ask to be released from the requirement that data be stored in the EEA, but it is a minimum requirement and cannot be negotiated. After the common deadline for final tenders, there are no more negotiations.