Procurement record

A procurement record (anskaffelsesprotokoll, sometimes translated as procurement protocol) is the contracting authority's written record of the essential matters in a procurement: who took part, who was rejected and why, who was chosen and why, and what the contract is worth. According to DFØ (the Norwegian Agency for Public and Financial Management), its purpose is to ensure verifiability, meaning that it can be checked that decisions were made according to the rules. For procurements covered by Directive 2014/24/EU, the corresponding document is called an individual report (Article 84). The § references on this page are to the Public Procurement Regulations (anskaffelsesforskriften) unless another act is named.

The duty applies to all procurements from NOK 500,000, which is the lower limit of the Regulations (§ 1-1). In Part I, which alone governs procurements from NOK 500,000 up to NOK 1.3 million and health and social services below NOK 8.7 million, the Regulations only say that essential matters for carrying out the procurement must be recorded or gathered in a record (§ 7-1 (3)). They set no requirements as to form, and according to DFØ the information may be spread over several documents as long as it can easily be gathered. According to DFØ, how much must be recorded depends on the value, scope and complexity: a procurement just above NOK 500,000 needs simpler record-keeping than one close to NOK 1.3 million.

In Part II and Part III, the Regulations list what the record must contain, to the extent it is relevant (§ 10-5 and § 25-5). 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. For health and social services from NOK 8.7 million (Part IV), the Part II list applies (§ 30-1 (7)). Both lists include, among other things, the contracting authority, what is to be procured and its estimated value, which suppliers requested to participate and submitted tenders, who was selected where the number of participants was limited, and why, who was rejected and why, the name of the selected supplier, the reasons for the choice and the value of the contract, which parts subcontractors are to perform where that is known, cases of conflicts of interest or distortion of competition resulting from dialogue with suppliers, and the reasons for a cancellation.

The lists are not identical. In Part II, the record must also name the suppliers the contracting authority has dialogue with, with a brief reason for selecting them, and give reasons if the contracting authority departs from what the procurement documents said about planned dialogue. The list in § 10-5 also includes the reasons for reserving a competition for health and social services for non-profit organisations, which the contracting authority may do in Part IV (§ 30-2a). In Part III, the record must give the reasons for not dividing the contract into lots, and for choosing a competitive procedure with negotiation or competitive dialogue. It must also give the reasons for using a competitive procedure with negotiation without prior publication (called a negotiated procedure without prior publication in the Directive) or a procurement without competition. Finally, it must name the suppliers whose tenders were eliminated when the number of tenders was reduced, and why.

Under a framework agreement, a record is required only when the contracting authority reopens competition (§ 10-5 (3) and § 25-5 (3)). Alongside the record, the contracting authority must keep documentation sufficient to justify important decisions, for procurements above the EEA thresholds for at least three years from the conclusion of the contract, and the contract itself for the whole contract period (§ 7-1).

Advice: ask for the record early when you have lost, or when something in the competition seems wrong. It shows what you would otherwise not see: how many submitted tenders, who was rejected and why, and in Part III why the contract was not divided into lots. That last reason may be given in the procurement documents instead, and it cannot be reviewed (§ 19-4 (2)).

The Regulations give you no separate right to the record. Access follows from the Freedom of Information Act (offentleglova), which gives anyone the right to request access to the case documents of the bodies it covers, even if you did not take part in the competition (Freedom of Information Act § 3). The contracting authority may exempt the record and the tenders until the supplier has been chosen (Freedom of Information Act § 23 (3)). After that, according to DFØ, they are as a starting point public, already during the standstill period (karensperiode). Information subject to a duty of confidentiality, such as trade secrets, remains exempt (Freedom of Information Act § 13). Contracting authorities not covered by the Freedom of Information Act must, under the Regulations, give access to the contract, from NOK 11.6 million for supply and service contracts and from NOK 96 million for works contracts, excluding VAT, with the same exemptions as under that Act (§ 7-3). According to DFØ, that duty applies only to the contract itself, not to the underlying documents. How to request access, and what can be redacted, is on the page on access to tenders and the procurement record.

Read the record with the right expectations. It must contain the reasons for the choice and the value of the contract, but the Regulations do not mention points per award criterion, and how much a record shows about the evaluation varies. Many e-tendering systems (KGV, the platforms Norwegian contracting authorities use to run competitions) have a function for the record, and according to DFØ much of it is filled in automatically. DFØ writes that it is nevertheless important to check manually that all essential matters and important decisions are sufficiently documented. Advice: ask for the record, the tenders and any separate evaluation documents in the same request, and compare the reasons in the record with those you were given in the award decision. Discrepancies between them, or between the record and what the tender documents said, are something you can raise with the contracting authority.

A municipality runs an open national tender competition (åpen tilbudskonkurranse) for caretaker services worth NOK 1.8 million. That is below the EEA threshold of NOK 2.5 million for municipalities, so Part II applies. The tender documents say the municipality plans dialogue with the three highest-ranked suppliers after the tender deadline. You are ranked third but are not invited, and the award decision says the winner had the best staffing plan. The next day you request access to the record and to the winner's tender. The choice has been made, so the exemption for the record and the tenders in the Freedom of Information Act no longer applies. The record shows that five suppliers submitted tenders, that one was rejected for a material deviation, and that the municipality had dialogue with only two, because the gap down to number three was large. According to DFØ, the plan does not bind the municipality, but the departure from it must be explained in the record, and now you can assess that explanation. In the winner's tender the hourly rates are redacted, but the total price is shown.