The question of when a procurement case must be considered to have been finalised is crucial for the ability of tenderers and other parties to access documents relating to the procurement during what is referred to as “the standstill period”. The question will therefore also be crucial in many cases for a supplier’s ability to apply for review of a procurement.
A DOCUMENT THAT HAS BEEN DRAWN UP BECOMES PUBLIC WHEN THE CASE HAS BEEN FINALISED
In order for an individual to have a right to access a document at a public authority, that document must be public. In order for a document to be public, the document is required to be stored at the public authority and to have been received or drawn up by the public authority.
There is seldom any problem with determining when a document is stored at or has been received by the public authority. However, the question of when a document must be regarded as having been drawn up at a public authority is often a matter of judgment that is examined by the courts.
A document created internally by a public authority can become public in three different ways. Firstly, documents are considered to have been drawn up when they have been dispatched, in other words sent or provided to someone outside the public authority. Secondly, documents which do not relate to any case become public when they have been approved or otherwise completed.
Thirdly, documents relating to a case become public when the case to which they relate has been finalised at the public authority. This normally occurs when the public authority has made a decision in the case.
PROCUREMENT CASES ARE FINALISED AT THE TIME OF THE AWARD DECISION... AREN’T THEY?
In a procurement case, there is often a large number of documents that have been drawn up by the public authority that are of importance to the tenderers, such as records of evaluations, minutes from negotiation meetings or internal e-mail correspondence regarding the assessment of tenders. Such documents may be crucial for a tenderer’s ability to check that a procurement has been carried out correctly. It is therefore important to know when a procurement case is considered to have been finalised and the documents are therefore public. This question was recently examined by the Stockholm Administrative Court of Appeal in case no. 2084-23.
The case concerned disclosure of documents in a procurement case, where an award decision had been issued and the procurement had been made subject to review. The judgment in the review case had not gained legal force at the time of the appealed confidentiality decision. The Administrative Court of Appeal came to the conclusion that since the award decision could still be legally challenged, the procurement case had not been finalised at the public authority. The documents in the case that had been neither received nor dispatched were therefore not yet public.
In our opinion, the Administrative Court of Appeal’s judgment constitutes a change to previous case law, which was based on the premise that a procurement case has been finalised when the award decision is issued and that documents drawn up therefore become public at the time of the award decision. This seems reasonable because cases are normally considered to have been finalised when the public authority makes a decision in the case, not when the deadline for appealing the decision expires. It is also of considerable interest for tenderers to be able to access documents during what is referred to as the standstill period in order to be able to check that the procurement has been carried out correctly and otherwise apply for review.
However, the Administrative Court of Appeal’s judgment means that documents drawn up by the authority on the procurement do not become public until the award decision can no longer be challenged, which in turn means that an authority has no need to issue evaluation reports or notes from the assessments of tenders, for example, during either the standstill period or a review process. It remains to be seen how the judgment will be applied by the procuring authorities and whether the approach – that a case is only finalised when the authority’s decision can no longer be challenged – will spread to other types of cases.
