Det skadar inte att ställa frågor - Om överprövningsprocessen i upphandlingsmål i ljuset av påtalandeskyldigheten

Sammanfattning: A tenderer who feels that the contracting authority has deviated from the specifications in the procurement documents and/or is in breach of the procurement legislation, has a vast opportunity to apply for a review procedure. However, during the last couple of years, several actions have been taken with the aim of making the Swedish review procedure more efficient and predictable. For instance, requirements to handle procurement cases expeditiously and time limits regarding the tenderer’s opportunity to invoke new circumstances to its application for review, have been instituted. In order for the tenderer to obtain approval to its application for review, the procurement impropriety must have caused or may cause the tenderer harm. In January 2022, in the judgement HFD 2022 ref. 4 I and II, the Supreme Administrative Court in Sweden stated that the tenderer has an obligation to present contingent complaints before submitting its tender. If a tenderer does not ask questions or requests clarifications regarding ambiguous requirements in the procurement documents before submitting its tender, the tenderer cannot obtain favourable judgement in a review procedure due to the ambiguities. However, the distinction between what facts and situations must be presented before submitting the tender and what not, is diffuse. In this essay, several judicial decisions by administrative courts of appeal are being analysed with the aim of clarifying what conditions these courts consider constitutes the obligation to present complaints. Overall, in general conclusions, the obligation appears to cover all types of errors and ambiguities in the public procurement, unless it is undoubtedly that the procurement impropriety could not have been detected earlier nor have been eliminated even if being remarked before submitting the tender. This means that the tenderer should assume that the court will make a strict interpretation of the obligation to present complaints. Therefore, the tenderer should remark on any ambiguities being noted. This applies even if the ambiguity has already been remarked by another tenderer. By expanding the requirements that a tenderer must fulfil to obtain approval to its application for review, the review procedure becomes more burdensome. An advanced review procedure affects a small tenderer greater than a large one, eventually leading to small tenderers choosing not to request to participate in procurements. This in turn could reduce the procurement competition, which would be contrary to the idea behind public procurement. Furthermore, it would increase the risk of not obtaining approval to the application for review as well as inadequate procurements not being reviewed by the court. Such development is incompatible with both the perspective of rule of law and the perspective of non-limiting competition. The thesis is mainly based on a legal dogmatic approach, supported by an EU legal method.