Rejection of tenders

Rejection (avvisning) means that the contracting authority keeps a supplier or a tender out of the competition, so the tender cannot win. The circumstances that justify rejection are called grounds for rejection (avvisningsgrunner), and the Public Procurement Regulations (anskaffelsesforskriften) divide them into three groups: formal errors, grounds relating to the supplier and grounds relating to the tender. In each group they separate grounds where the contracting authority must reject from grounds where it may reject. A ground where it may reject gives the contracting authority discretion, but DFØ (the Norwegian Agency for Public and Financial Management) writes that equal treatment can turn that right into a duty towards suppliers in the same situation. Grounds relating to the supplier include what Directive 2014/24/EU calls exclusion grounds (Article 57), such as convictions and unpaid taxes.

The rules differ between the parts of the Regulations, which depend on the type of contract and its estimated value. Part II covers contracts from NOK 1.3 million up to the EEA thresholds, other than health and social services, and special services (særlige tjenester) from NOK 1.3 million with no upper limit. Part III covers supply, service and works contracts at or above the EEA thresholds.

Formal errors. The contracting authority must reject a tender that arrives after the tender deadline, and a request to participate or a tender that is submitted in breach of the requirements on means of communication. It may reject a request to participate that arrives late, and a request to participate or a tender that does not meet the requirements on form. DFØ writes that the deadline rule is interpreted strictly, also when the tender arrives only shortly after the deadline. The rules are the same in Part II and Part III.

Grounds relating to the supplier. The contracting authority must reject a supplier that does not meet the qualification requirements, that has been convicted by final judgment or has accepted a penalty notice (forelegg) for, among other things, corruption, fraud or money laundering, or where there is a disqualification (inhabilitet) of persons acting for the contracting authority (§ 7-5) or an unfair competitive advantage from the preparation of the competition that cannot be remedied by less intrusive measures. In Part III, it must also reject for tax and duty arrears established by a final judgment or a final administrative decision, unless that would be clearly disproportionate. In Part III it may also, unless that would be disproportionate, reject for reasons such as bankruptcy, serious or repeated breaches of rules on the environment, working conditions and social conditions, and earlier material breaches of contract that led to termination, damages or similar sanctions. In Part II, the grounds where it may reject are tax and duty arrears, unless rejection would be clearly disproportionate, and that the supplier lacks the necessary integrity or cannot be expected to perform the contract to a satisfactory quality or on time. For criminal offences and some of the grounds where it may reject, you cannot be rejected if you document sufficient measures (often called self-cleaning): compensation paid or promised, cooperation with the authorities and measures to prevent it happening again. Rejection because of a conviction or an accepted penalty notice can take place for up to five years from the final judgment or the acceptance of the penalty notice, and rejection for serious breaches of rules on the environment, working conditions and social conditions, agreements aimed at distorting competition, earlier material breaches of contract or other grave professional misconduct for up to three years from the relevant event (§ 24-6).

Grounds relating to the tender. The contracting authority must reject a tender that cannot be considered binding, or that contains material deviations from the procurement documents. It may reject a tender with deviations or ambiguities that are not insignificant, an abnormally low tender, a tender that does not comply with rules on the environment, working conditions and social conditions, a tender that exceeds a budget the contracting authority has documented that it set before the competition, and a tender it cannot accept for other, similar reasons (§ 24-8 (2), which also applies in Part II under § 9-6 (2)). In Part III, the contracting authority must also reject a tender that is abnormally low because it does not comply with such rules. If a tender appears abnormally low, the contracting authority must in Part III ask in writing for an explanation within a reasonable time limit, and may only reject the tender if the price or cost level cannot be satisfactorily explained. If you do not answer within the time limit what the contracting authority has clearly asked for, you can be rejected, according to DFØ.

From NOK 500,000 up to NOK 1.3 million (Part I) and for health and social services, the Regulations contain no rules on rejection. For Part I, DFØ writes that the contracting authority must still reject suppliers that do not meet the qualification requirements it has set, and cannot choose a final tender that does not meet the minimum requirements (absolutte krav) of the competition.

Submitting documents later and clarifying is not a second chance to deliver. In Part III, the contracting authority may ask you in writing to submit, supplement, clarify or complete information and documentation within a short time limit, but this must not lead to the tender being improved, and the Regulations say that the contracting authority may do so, not that it must. Documentation showing that you met a qualification requirement at the deadline can be submitted later when the contracting authority asks for it. Meeting the requirement only after the deadline is something else: in case LE-2022-19926, a case under Part II, the Court of Appeal (lagmannsretten) held that this is not allowed, in line with KOFA (the Complaints Board for Public Procurement) case 2020/515.

How much can be corrected depends on the procedure. In an open or restricted procedure (anbudskonkurranse), negotiation is not allowed, so as a rule a reservation (forbehold) cannot be removed after the deadline if removing it improves the tender. In a national tender competition (tilbudskonkurranse) under Part II, the contracting authority may hold a dialogue about deviations and wait to reject until the dialogue is over. In case 2020/528, KOFA held that the contracting authority has a right, but not a duty, to postpone the rejection, and does not have to continue the dialogue until all deviations are corrected. For that procedure, see the page on the competitive procedure with negotiation.

Read how the tender documents describe the requirements. Whether a deviation is material is decided case by case, based on, among other things, how important the requirement is, how large the deviation is, and whether it can distort the competition or the risk in the contract. If the contracting authority has written that a deviation from a requirement shall lead to rejection, it is bound by that, according to DFØ. In case 2025/498, KOFA held that a requirement described as a minimum requirement, where the tender documents said that deviations ‘may lead to rejection’, was not a minimum requirement in the sense of an absolute requirement (absolutt krav). Advice: check your tender against the requirements and the contract terms before you submit it, and do not make reservations you do not need.

A central government agency advertises an open procedure for cleaning worth NOK 4 million. That is above the EEA threshold of NOK 1.63 million for central government supply and service contracts, so Part III applies. One qualification requirement is experience from three similar contracts in the last three years. You submit two references and write in your tender that prices are adjusted twice a year, while the contract says once a year. The agency asks you in writing to submit further documentation, and you send a third reference for a contract you had delivered before the tender deadline. If it shows that the requirement was met at the deadline, you cannot be rejected for that. The price reservation is worse. The agency can ask you to explain it, but as a rule cannot let you withdraw it after the deadline, because such a change would probably improve your tender. If the agency considers the deviation material, the tender must be rejected, and you receive a written notice with brief reasons.