Leverantörs vilseledande vid offentlig upphandling - Tänkbara straffrättsliga, offentligrättsliga och civilrättsliga remedier
Sammanfattning: Occasionally when a contracting authority is about to award a public contract or conclude a framework agreement with a supplier, the supplier somehow misleads the contracting authority in order to receive the public contract or the framework agreement. Due to the rigorous regulatory system that distinguish public procurement one can expect the misleading to be a problem of greater importance than in B2B-relationships. This thesis examines different kinds of remedies and evaluates these remedies practical importance in order to counteract such misleading behaviour. It can be concluded that the misleading does not constitute a fraud, and as yet probably not even a misdemeanor fraud ("oredligt förfarande") due to the fact that the contracting authority bears the full burden of proof when it comes to the regulation of abnormally low tenders in accordance with how the swedish procurement act ("lagen om offentlig upphandling") is perceived, which affect the possible penal remedy. However, the misleading runs counter to the swedish marketing act, but in reality the act has nothing of great importance to offer in the battle of such misleading. A potentially important tool is the possibility to reject an abnormally low tender, but the effectiveness of the remedy implies that the burden of proof regarding the seriousness of the offered tender is places on the tenderer, which is not the case as of today but may be the case in the future due to the fact that four cases regarding this question is about to be examined by the Supreme court. The best way to contest any kind of misleading is probably with different kind of contractual solutions such as clauses stating liquidated damages, merger clauses and clauses stating under what premises contracts may be terminated.
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