Korruption inom offentlig upphandling? : Med fokus på jäv & mutbrott

Sammanfattning: In order for public power to gain the trust of citizens, it is assumed that laws and regulations are followed. However, problems arise when the laws do not cover the irregularities that occur. The two basic purposes of procurement are that taxpayers have an interest in the authorities managing their money efficiently and benefiting from the competition and ensuring that equal treatment is observed, i.e. that the suppliers must have the same conditions in a procurement.Corruption in public procurement distorts competition and reduces confidence in public power. Generally speaking, Sweden has low corruption in relation to many other countries. However, corruption occurs and the number of people is suspected to be large.Based on current legislation, it is possible that a contractor assigns someone a contract worth millions in an incorrect manner without being liable to criminal liability for such an allocation. At the same time, an official who assigned someone a wrong building permit could risk imprisonment. It is therefore relatively risk-free for a contractor to commit inaccuracies based on the currentlegislation. This may be due to the fact that procurement is not covered by the concept of authority and thus the criminal liability is limited.In the case of a closer look at the rules of conflict that contracting authorities have to assume, it can be stated that all contracting authorities are not covered by the conflict rules. This should be addressed by, for example, introducing conflict rules in The Public Procurement Act. By introducing conflicting rules in The Public Procurement Act, all contracting authorities would have the same rules to deal with. However, the introduction of non-conformity provisions would not mean that procurers can be punished for misconduct, since procurement still does not constitute authority. Therefore, the introduction of rules of confiscation is rather a more uniform legislation for contracting authorities than a criminal law change.According to us, there should be more ways to punish and counteract that someone deliberately violates the procurement rules. This is because public procurement amounts to huge sums of money each year and therefore requires a special careful regulation to avoid irregularities. In principle, it is only offenses, and then the taking of bribe, which is imposed on officials of contracting authorities. However, this is also not common, but rather unusual in a closer look at the statistics on prosecution. This is because that bribery is difficult to access.The issue of responsibility for civil servants has been regularly discussed, but in the legislationthere is nothing to indicate that a change is or will be relevant. The latest report on enhanced criminal liability states that an expanded civil service responsibility would help strengthen the protection of citizens' legal certainty. However, nothing inthe report mentions whether procurement will be covered. In summary, therefore, criminal liability in public procurement has certain shortcomings that we consider necessary to remedy. Even conflicting rules for contracting authorities should be compiled in one singe law which, in our opinion, reasonablywouldbe The Public Procurement Act.