In previous newsletters, Lindahl has reported on the proposed amendments to the procurement laws presented by the Government through memorandum Ds 2022:5 – more effective procurement supervision. The memorandum was published in March 2022 and the proposal was referred for consultation. The referral responses were delivered to the Government and the legislative procedure then continued. The Government delivered a referral to the Council on Legislation on 25 May 2023.
The Council on Legislation’s referral proposes that the Swedish Competition Authority, in its capacity as the supervisory authority for public procurement, be given greater powers to supervise the application of the procurement laws. It is proposed that the legislative amendments should enter into force on 1 January 2024. The Council on Legislation’s full referral is available to read here (Swedish).
The proposals in the Council on Legislation’s referral mainly consist of the following.
- The Swedish Competition Authority will be permitted to make decisions on a procurement fine at first instance, i.e. without a procedure involving an application to a general administrative court.
- The deadline for decisions on a procurement fine will be extended to two years.
- The ceiling for procurement fines will be raised from SEK 10 million to SEK 20 million.
- The documentation obligation will be associated with a deadline whereby the documentation must be complete no later than 30 days after an agreement has been entered into or a decision to discontinue the procurement has been made. It is also clarified that the documentation must be submitted on a continuous basis and not afterwards.
- The Swedish Competition Authority must be able to order procuring authorities and entities to decide on guidelines for use of direct procurement.
- The provisions on procurement fines and supervision, which are currently contained in two separate concluding chapters of the procurement laws, will be merged into a new joint chapter in each law.
The Council on Legislation’s referral contains some changes compared with the previous memorandum. The memorandum contains a proposal whereby a procurement fine can be imposed not only in the event of unauthorised direct procurement, but also in the event of breaches of certain obligations deriving from the procurement laws. The memorandum also contains a proposal whereby the Swedish Competition Authority could also aim investigation orders at suppliers and the Swedish Competition Authority’s orders to suppliers and procuring authorities could be associated with penalties. However, the Government’s assessment is that these changes should not be introduced at present.
THE LEGISLATIVE PROCESS – WHAT IS THE NEXT STEP?
After the Council on Legislation’s review, the Government will prepare a Government bill taking the Council’s comments into consideration. The bill will then pass to the Riksdag, which will make a decision on whether the bill with the proposed changes should be introduced. We will therefore continue to have reason to monitor the proposed bill.
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