📋 Tender Overview
At the beginning of April the Government and the Local Government Procurement Center SKI published a guide to the use of SKI 02.19 SaaS-Cloud. The guidance comes after the Complaints Board for Tenders in March expressed concern about the legality of SKI 02.19s allocation model.In the case Assemble A S v. Sor Municipality the Complaints Board for Tenders stated that SKI 02.19s model for direct award gave rise to considerations as to whether the model is in accordance with section 2 2 of the Public Procurement Act according to which a public tender must be designed with the aim of unjustifiably restricting competition. CLIENT RESPONSIBLE FOR STATEMENT OF NEEDSBased on the Complaints Boards opinion SKI issued a guide to the application of the allocation model. In it SKI writes among other things Although it is correct to assign directly to the service when only one service meets your organizations needs in that case you must expect that the documentation requirement will increase. This means among other things that the requirement setting must be able to be documented including the needs that result in several possible services being limited to one service. As a contracting authority you thus have the burden of proving that the requirements statement has been made correctly and that you have not deliberately or unconsciously excluded other suppliers who could have met your needs in another way when choosing IT service functionalities. About that risk SKI writes in the guide The risk is that by delimiting your IT service functionality s STORM you will be cut off services that do not contain one or more of the identified IT service functionalities but which can still meet This is because the desired need can also be met with other IT service functionalities. If this is the case this artificially restricts competition as both services actually meet the customers actual needs but only one is included in the evaluation - and which service included is even dependent on the choice of IT service functionality STORM. The above thus indicates that you may risk restricting competition artificially - in violation of the Public Procurement Act section 2 subsection. 2 - if there is no exact connection between your calculated needs and the framework agreements requirements for calculating the need for IT service functionalities - even if you have followed the guidelines in Appendix B. According to the instructions it is not only important that you carry out a thorough needs analysis but it is also your responsibility as a contracting authority to see through which different combinations and compositions of IT service functionalities will be able to meet your needs.Last but not least we must understand the guidance in such a way that you as the contracting authority cannot be sure of complying with the Public Procurement Act by following the guidelines for award prepared by SKI.WHEN SHOULD CAN SKI 02.19 NOT BE USEDIn the guide SKI writes that you should be reluctant to use SKI 02.19 when allocating directly Especially in cases where only a few or one service is identified by following Appendix B you should in all cases assess whether the framework agreement based on an overall financial consideration is attractive you should assess here whether your organization can achieve a better financial qualitative agreement by for example conducting its own EU tender - here it should be noted however that an EU tender all other things being equal entails increased transaction costs. The mentioned case is not a consequence of the aforementioned ruling but in our opinion rather a consequence of the Complaints Boards ruling of 20 August 2020 EG A S against Egedal Municipality where the Complaints Board found that Egedal Municipality had acted in violation of the allocation model in SKI 02.19 by negotiating a savings home of several million kroner.In addition you can not use the framework agreement if your needs can not be defined according to the IT service functionalities that follow from the framework agreement If - despite a thorough analysis - it is not possible to define needs cf. the framework agreement - eg because your organizations business and objective needs can not be unambiguously limited to the specified IT service functionalities - you can not use the framework agreement for the specific procurement. Unfortunately the guide does not provide a detailed description of when the clients needs cannot be defined. The fact that the contracting authoritys needs cannot be unambiguously delimited by the framework agreements IT service functionalities seems to be in direct conflict with the other sections of the guide as referred to above according to which the contracting authority must ensure and document that the needs statement does not exclude services that meet other functionalities.
