Public Procurement 2025 Comparisons

In Norway, the public procurement legislation is set out in one general framework law and various corresponding regulations. The general framework law (the Public Procurement Act) applies to all public contracts (above NOK100,000), and sets out the general procurement principles. The Public Procurement Act is then supplemented by the public procurement regulations, which set out detailed rules specific to the different sectors. The main regulation is the Procurement Regulation (“classic sector”), which applies to all sectors except those that are explicitly excluded. Then there is the Utilities Regulation (for the “utilities sector”), the Concession Contract Regulation, and the Regulation on Defence and Security Procurements.

Substantial parts of the Public Procurement Act and the regulations are based on EU/EEA directives and aim to ensure fair competition and transparency in the procurement process.

The different regulations share many common features and are based on the same principles, but they also have some regulatory approaches and specific provisions that differ between them.

In this practice guide, unless otherwise specified, we will focus on the Procurement Regulation (“classic sector”) and its Part III. This is the regulation mostly applied in Norway and Part III covers the procurements of contracts above the EU/EEA threshold value.

According to Section 2 of the Public Procurement Act, the following entities are subject to the Act and accompanying regulations:

• state authorities;
• county and municipal authorities;
• public law bodies; and
• associations with one or more of the mentioned contracting authorities, public undertakings that perform supply activities as defined in international agreements binding on Norway, and other entities conducting supply activities under exclusive or special rights as defined in such agreements.

The Public Procurement Act applies when contracting authorities enter into supply, service, or works contracts, including concession contracts, or conduct planning and design contests, with an estimated value equal to or exceeding NOK100,000 excluding VAT.

In addition, any of the mentioned contracts exceeding an estimated value equal to or exceeding NOK100,000 excluding VAT, would fall under the scope of one of the procurement regulations mentioned in 1.1 Public Procurement Legislation. These regulations have their own specific thresholds, setting out which parts of the regulations will apply.

The Procurement Regulation (“Classic Sector”)

The Procurement Regulation for the classic sector applies to all contracts not falling under any of the more specific regulations. It is divided into different parts.

Part I applies to all procurements covered by the regulation – ie, a value exceeding NOK100,000 excluding VAT.

Part II applies to contracts with an estimated value of at least NOK1.3 million excluding VAT, (but not exceeding the EEA threshold values), except for contracts for health and social services and contracts for special services with an estimated value of at least NOK1.3 million excluding VAT.

Part III applies to contracts with an estimated value equal to or exceeding the EEA threshold values.

(1) The EEA threshold values are:

• (a) NOK1.49 million excluding VAT for supply and service contracts and planning and design contests of central government authorities;
• (b) NOK2.3 million excluding VAT for supply and service contracts and planning and design contests of other contracting authorities; and
• (c) NOK57.8 million excluding VAT for construction works contracts.

(2) The EEA threshold value is NOK7.8 million excluding VAT for contracts concerning specific services and for competitions related to health and social services.

(3) For central authorities’ supply contracts in the field of defence and security, the threshold value in paragraph (1)(a) applies only to goods listed in Annex 4, point 2 of Appendix I to the WTO Agreement on Government Procurement, while the threshold value in paragraph (1)(b) applies to all other goods in the field of defence and security.

Part IV applies to contracts for health and social services with an estimated value equal to or exceeding the EEA threshold.

Part V applies to planning and design contests with an estimated value of at least NOK1.49 million excluding VAT.

The Utilities Regulation (“Utilities Sector”)

The Utilities Regulation applies to certain contracts within the water, energy transport and postal services sectors.

Part I applies to all procurements covered by the regulation – ie, a value exceeding NOK100,000 excluding VAT.

Part II applies to contracts with an estimated value equal to or exceeding the EEA threshold values, except for contracts for special services and contracts for health and social services. The EEA threshold values are ((i) NOK4.6 million excluding VAT for supply and service contracts and planning and design contests; (ii) NOK57.8 million excluding VAT for construction works contracts; and (iii) NOK10.4 million excluding VAT for contracts for special services and health and social services.

Part III applies to contracts for special services and contracts for health and social services with an estimated value equal to or exceeding the EEA threshold value (iii).

Part IV applies to planning and design contests with an estimated value equal to or exceeding the EEA threshold value (i).

The Concession Contract Regulation

The Concession Contract Regulation applies to concession contracts.

Part I applies to all concession contracts covered by the regulation – ie, a value exceeding NOK100,000 excluding VAT.

Part II applies to concession contracts with an estimated value equal to or exceeding the EEA threshold of NOK57.8 million excluding VAT, except for concession contracts for special services and concession contracts for health and social services.

Part III applies to concession contracts for special services and health and social services with an estimated value equal to or exceeding the EEA threshold of NOK57.8 million excluding VAT.

The Regulation on Defence and Security Procurements

This regulation applies to defence and security procurements.

Part I of the regulation applies to all procurements covered by this regulation – ie, a value exceeding NOK100,000 excluding VAT. This does not directly follow from the regulation, but is a consequence of the enabling statute (see the Public Procurement Act Section 2).

Part II of the regulation applies to contracts where the estimated value exceeds the threshold values of (i) NOK4.6 million excluding VAT for supply and service contracts, and NOK57.8 million excluding VAT for construction works contracts; and (ii) where the combined estimated value of subcontracts mentioned in Section 2-3 seventh and eighth paragraphs (multiple subcontracts or sub-tasks) exceeds the values stated in (i), Part II of the regulation applies to all subcontracts. However, construction works contracts with an estimated value of less than NOK10.4 million excluding VAT and service contracts and supply contracts with an estimated value of less than NOK836,000 excluding VAT can still be entered into according to Part I of the regulation, provided the combined value of these subcontracts does not exceed 20% of the total combined value of all subcontracts. The Ministry of Trade, Industry, and Fisheries may amend the threshold values and CPV codes specified in this regulation.

Contracts concerning non-prioritised services (see Appendix 6) follow the rules in Part I even if the estimated value exceeds the threshold values specified above in (i) and (ii). Certain exceptions apply to contracts for the provision of training and rehabilitation services offered outside hospitals and covered by the regional health authorities’ responsibility for specialist health services, even if the service is not provided by a non-profit organisation.

The contract award procedures are open to any interested parties which are either (i) an entity legally established within an EU/EEA state, or (ii) an entity established in a state which has been granted rights under the WTO Agreement on Government Procurement or other international agreements by which Norway is bound, to the extent provided by such agreements.

An entity belonging to category (i) and (ii) is given direct rights under the public procurement regulations and may enforce them.

It should be pointed out that an entity not belonging to category (i) or (ii) may indeed participate in a contract award procedure if this is not prohibited by the procurement documents. However, the contracting authorities may choose to exclude such an entity from the procedure at any stage of it – unless it has specified otherwise in the procurement documents.

The awarding authorities must adhere to the general procurement principles stated in Section 4 of the Public Procurement Act in all procurement procedures. These principles include competition, equal treatment, predictability, verifiability, and proportionality. Additionally, the Public Procurement Act requires contracting authorities to consider environmental impacts during procurement.

The Procurement Regulations mandate the announcement of competition prior to awarding contracts. The competition is announced in the national database Doffin, or, if it exceeds the EU/EEA thresholds, the TED-database.

There are various types of announcements, including prior information notices, contract notices, preliminary notices, buyer profile notices, intent notices, and contract award notices. In the following, we will focus on the contract notice, which is the most common in the classic sector.

The announcement must contain all essential information about the procurement to ensure predictability for the supplier. The Ministry prescribes the forms in which the procurement must be announced.

The announcement forms require, amongst other things, the following information:

• the services or goods to be procured, the estimated quantity and the estimated value of the procurement;
• the duration of the contract, including taking into account any option clauses;
• the qualifications the supplier must meet in order to fulfil the selection criteria;
• the award criteria with the relative weighting applicable to the procurement;
• other relevant information, for instance what electronic means of communications are used;
• the contracting authorities entitled to use the contract to be procured; and
• the deadline for submitting offers or for applying to qualify for a restricted competition.

Note that the above applies to contracts over the EU/EEA threshold values set out in Part III of the Procurement Regulation (“classic sector”). Part II procurements (exceeding the national threshold value but below EU/EEA thresholds) only need to be announced in Doffin. For Part I procurements (below the national threshold value) it is optional whether the competition should be announced.

It is permitted to conduct preliminary market consultations to prepare the procurement and provide information to the suppliers about plans and needs. For procurements subject to Part III of the Public Procurement Regulations, this is set out in Section 12-1. The contracting authority may seek or receive advice from independent experts, authorities, suppliers, or other market actors. The advice can be used in the planning and implementation of the procurement, provided that the advice does not distort competition or lead to a violation of the principle of equal treatment.

Market dialogue must be documented to ensure that the requirements for predictability and equal treatment are maintained throughout the process.

If the contracting authority has received advice from a supplier or an entity affiliated with the supplier prior to the competition, the contracting authority must take appropriate measures to ensure that the supplier does not gain an unfair competitive advantage if they participate in the competition. This can be ensured by providing other suppliers participating in the competition with the same relevant information as the supplier who has been involved, and/or by setting a deadline for the receipt of bids to level any differences between the suppliers.

The Procurement Regulation specifies various types of tender procedures that are permitted for use under its Part III. It is always permissible to use the following procedures:

• Open Tender: This means that all interested suppliers have the opportunity to submit a bid.
• Restricted Tender: This means that all interested suppliers may submit a request to participate in the competition, but only suppliers invited by the contracting authority are allowed to submit a bid. The contracting authority must either invite all the suppliers that meet the qualification requirements/the selection criteria in the competition or make a selection among the qualified suppliers. In such a tender procedure, the contracting authority must establish objective and non-discriminatory criteria to qualify the suppliers.

Subject to specific limitations, it is also permitted to use the following tender procedures:

• Competitive Procedure With Negotiation After Prior Notice: This implies that the contracting authority has the ability to negotiate with suppliers on all aspects of the bids. Pre-qualification is carried out similarly to restricted tender. The fundamental procurement principles must be adhered to. Thus, negotiations must be conducted in accordance with the principles of predictability, ensuring that negotiations occur in accordance with the tender documents. The contracting authority cannot negotiate the award criteria and minimum requirements set in the procurement documents. The purpose of the negotiations is to make improvements and adjustments to the suppliers’ bids. Negotiation meetings must be documented through written minutes.
• Competitive Dialogue: The contracting authority invites selected suppliers to participate in a dialogue phase, where potential solutions are discussed and developed together. After the dialogue, the remaining participants are invited to submit final offers based on the outcome of the discussions. This procedure is typically used when innovation is needed or when it is not possible to specify the requirements and solutions in detail from the start.
• Innovation Partnership Competition: The contracting authority may only use the innovation partnership competition procedure to develop and procure innovative goods, services, or construction works. Specific procedural rules apply to this procurement procedure.

Generally, the procurement procedures require that the competition be announced. However, exceptions exist that allow for competitive negotiation without prior notice, or direct procurement without competition, but only subject to strict conditions. The overall approach is that these exceptions are permitted solely in situations where announcing the procurement would be an inefficient use of resources or otherwise impractical.

In cases of competitive negotiation without prior notice, the contracting authority is still required to uphold the fundamental principles of competition and, as far as possible, follow the procedural rules set out in Part III.

Whether the contracting authority prefers an open or restricted tender procedure is subject to the discretion of the contracting authority. The other tender procedures may only be used under specific conditions.

A competitive procedure with negotiation after prior notice and competitive dialogue may only be used when:

• the contracting authority’s needs cannot be met without adjustments to already available solutions;
• the procurement includes design or innovative solutions;
• the nature, complexity, legal or financial structure, or associated risks of the procurement necessitate negotiation;
• the contracting authority cannot draft specifications with sufficient precision by referring to a standard, European technical assessment, common technical specification, or technical reference; or
• the contracting authority only received unacceptable tenders in a previous open or restricted tender procedure.

The contracting authority can use the competitive innovation partnership procedure only in cases where the purpose is to develop and procure innovative goods, services, or construction works.

Competitive negotiation without prior notice and procurement without competition are permitted only under strict conditions, as detailed in 2.3 Tender Procedure for the Award of a Contract.

The Procurement Regulation permits direct contract awards in certain cases, which are exhaustively listed in Section 13-4. These are where:

• it is impossible to conduct a competitive negotiation without prior notice;
• the procurement is for goods or services that only a specific supplier can provide and subject to more detailed strict conditions;
• the contracting authority is to enter into a supply contract for additional deliveries with the original supplier, in certain cases;
• the contracting authority is to enter into a contract for new services or construction works that constitute a repetition of similar services or construction works carried out under a previous contract between the contracting authority and the same supplier, in certain cases;
• the procurement concerns goods that are listed and purchased on a commodity exchange;
• the procurement concerns goods or services that the contracting authority can acquire on particularly advantageous terms from a supplier that has ceased trading, or from a trustee in bankruptcy, a debt negotiation, or equivalent process authorised by law or regulation; or
• the contracting authority is to enter into a service contract with the winner of a planning and design competition.

These exemptions to direct contract awards are considered exceptional rules and are interpreted restrictively. The contracting authority bears the burden of proof that the conditions are met.

The tender documents must be available from the day the contracting authority publishes the competition in the TED database or sends an invitation to confirm interest from suppliers (Section 14-1 of the Procurement Regulation).

The tender documents must contain the following information (unless already sufficiently described in the announcement):

• what is to be procured, including any specification requirements and branding requirements, and absolute requirements that all suppliers must meet;
• the contract terms applicable to the assignment (usually the draft contract);
• whether the contracting authority will enter into a framework agreement, an innovation partnership, or establish a dynamic purchasing system;
• how the contracting authority will conduct the competition, including the procurement procedure, deadlines, qualification requirements, and selection criteria suppliers must meet, award criteria, documentation requirements, and whether electronic catalogues or electronic auctions will be used;
• the requirements related to the content and format of a request to participate in the competition or tender; and
• other information relevant to the preparation of a request to participate in the competition or tender.

In a competition for an innovation partnership, the tender documents must additionally include information on a description of the need for the innovative goods, services, or construction work, and the arrangements regarding intellectual property rights.

The Procurement Regulation Section 14-3 generally requires that the contracting authority provide free, direct, and unrestricted electronic access to the tender documents. The announcement or invitation must include the internet address where the tender documents are available. If the contracting authority cannot provide free, direct, and unrestricted access to parts of the tender documents, the announcement or invitation to confirm interest must specify how these documents can be accessed. It might also be the case that the contracting authority cannot provide free, direct, and unrestricted electronic access to all documents due to documents that contain business secrets. In such instances, the contracting authority must specify the necessary measures to ensure the confidentiality of the information and how suppliers can access the documents. In these cases, the contracting authority must extend the bidding deadline by five days (except in urgent procurement cases).

Deadlines for submitting tenders or expressing interest in participating in the competition are set by the contracting authority in the tender documents. The Procurement Regulation establishes minimum deadlines based on the time after the publication of the procurement documents. The minimum deadlines vary depending on the tender procedure used by the contracting authority.

For open tender procedures, the deadline for receiving bids shall be at least 30 days from the day the notice is sent to the TED database (35 days if the contracting authority does not require bids to be submitted electronically). It is possible to shorten the bidding deadline to 15 days under specific conditions.

For restricted tender procedures, the minimum deadline for receiving requests to participate is also at least 30 days. The deadline for receiving bids from suppliers invited to submit bids shall be at least 25 days from the day the contracting authority sends the invitation (30 days if the contracting authority does not require bids to be submitted electronically). It is possible to shorten the deadlines under specific conditions (see Section 20-3). Note that the entire tender documentation must be published at the same time, even if the procedure is carried out in two stages.

In a competitive procedure with negotiation after prior notice, the deadline for receiving requests to participate shall be at least 30 days from the day the notice is sent to the TED database. There shall be at least 25 days from the day the contracting authority sends the invitation for the deadline for submitting bids (30 days if the contracting authority does not require bids to be submitted electronically).

In an innovation partnership procedure and competitive dialogue, the deadline for receiving requests to participate shall be at least 30 days from the day the notice is sent to the TED database.

The contracting authority must always take into account the complexity of the contract and the time it takes for suppliers to prepare requests and bids when setting the specific deadline for the submission of requests to participate or bids.

The contracting authority may set qualification requirements/selection criteria that interested suppliers must meet. For procurements under Part III of the procurement regulation, it may be required that the supplier be appropriately registered and possess the necessary authorisations. Furthermore, the contracting authority may set criteria relating to the economic and financial standing and technical and professional ability (experience). Chapter 16 of the Procurement Regulation also sets out an exhaustive regulation of the documentation requirements that may be lawfully imposed.

In a restricted tender procedure, competitive procurement with negotiations after prior notice, competition for innovation partnerships, and competitive dialogue, the contracting authority can set a lower and, if applicable, also an upper limit on the number of suppliers selected to submit a tender (see Section 16-12). The contracting authority shall specify the lower and upper limits in the notice or in the invitation to confirm interest, along with objective and non-discriminatory criteria or rules for the selection of the suppliers.

The contracting authority shall select a number of participants sufficient to ensure genuine competition, but not fewer than five in a restricted tender competition or fewer than three in a competitive procedure with negotiation following a prior notice, competition for innovation partnerships and competitive dialogue. The contracting authority may select fewer suppliers than stated in the notice or invitation if there are not a sufficient number of suppliers.

Tenders are evaluated and the winner of the contract award procedure is determined based on the award criteria that are set in advance by the contracting authority. The contracting authority shall select the offer based on the best balance between price or cost and quality. The award criteria can be determined based on the contracting authority’s needs, and Section 18-1 outlines some examples, including quality, the organisation of the proposed staffing, customer service, etc. Thus, the contracting authority has discretion when setting the award criteria, but they cannot be so discretionary that the contracting authority obtains unlimited freedom of choice. The award criteria must also be related to the delivery that the procurement concerns. The contracting authority shall also specify the documentation requirements for each award criterion.

On 1 January 2024, a provision regarding climate and environmental considerations in public procurement was introduced in Section 7-9 of the Procurement Regulation, requiring as a main rule that climate and environmental considerations be weighted at 30% in procurement evaluations.

The Procurement Regulation contains provisions regulating exclusion grounds related to both the supplier and the tenders submitted. There are obligatory and discretionary exclusion grounds.

When it comes to the exclusion grounds for suppliers, the most common cause for exclusion is when the supplier does not meet the qualification requirements/selection criteria in the competition. However, there are also other exclusion grounds set out in Section 24-2 of the Procurement Regulation. Some of these are mandatory exclusion grounds and some of them are at the discretion of the contracting authority.

When it comes to the exclusion grounds for tenders, the most common exclusion ground is related to non-conforming tenders – ie, that it does not meet the requirements of the specification in the procurement documents. Where the non-conformity is deemed substantial, the contracting authority is under an obligation to exclude the tender. There are also other exclusion grounds set out in Section 24-8 of the Procurement Regulation, some of which are mandatory and some of which are discretionary.

In a case where the contracting authority is permitted to select the number of bidders allowed to participate, the election criteria must be specified in the announcement of the tender or in the invitation to confirm interest. The criteria must be based on objective and non-discriminatory criteria.

When it comes to the evaluation methodology for evaluating tenders, the contracting authority must set the award criteria and must also stipulate the relative weighting of the award criteria.

There is no further requirement for the contracting authority to share the evaluation method prior to awarding the contract. However, should the contracting authority choose to do so in the procurement documents, they must adhere to the methodology described. Also, when awarding the contract, the contracting authority must in the notification letter explain the evaluation method in the justification, for instance the point scale applied and which volume figures have been used as a basis.

The contracting authority shall “promptly” provide suppliers who are not selected with a written notice of the selection to participate in the contact award procedure. The notice shall include a brief justification.

“Promptly” means that the justification must be provided in sufficient time before the deadline for submitting offers so that the supplier has the opportunity to take effective measures to challenge the decision. It is deemed good practice to notify parties who have not been selected for participation at the same time as the invitation to participate is sent to the selected suppliers.

The contracting authority must justify which suppliers are selected in a competition. The justification can be “brief”, but should allow suppliers to determine if they want to appeal the decision. It must clearly show that the contracting authority assessed applications against all selection criteria and ranked suppliers in a factually correct and reasonable manner. The justification must contain information on the score differences. Simply referring to the criteria in the procurement documents is insufficient without indicating the actual circumstances that the decision is based on.

The contracting authority shall provide written notice, known as an award letter, simultaneously and to all affected suppliers about the selection of supplier. The term “all affected suppliers” means “suppliers who have submitted a request to participate in the competition and have not received a notification that the request has been rejected or discarded, and all suppliers who have submitted bids”.

The contracting authority must provide a justification for the selection and specify a “standstill period” in the notice during which it is prevented from entering into the contract (Section 25-1 first paragraph). The justification must not only name the chosen supplier, but also describe the chosen offer’s characteristics and relative advantages in accordance with the award criteria. Simply stating the result is insufficient. The justification must specify which award criteria were used in the evaluation. If the contracting authority has specified sub-criteria for the individual award criteria, the justification should, as a general rule, show how the chosen offer was evaluated against each sub-criterion.

There is no requirement for prior notification in Norwegian procurement law.

Section 25-2 of the Procurement Regulation requires the contracting authority to set a standstill period of at least ten days, counted from the day after the notice of the chosen supplier has been sent. If the contracting authority has made an exception from the requirement to use electronic communication, the standstill period must be at least 15 days.

The body responsible for the review of the awarding authority’s decisions in Norway is the Norwegian Complaints Board for Public Procurement (KOFA). KOFA handles complaints and can issue advisory opinions and impose fines in certain cases.

Furthermore, the Norwegian courts play a crucial role in reviewing decisions made by awarding authorities. In particular, interim injunctions may be used to challenge award decisions or other decisions adopted by the contracting authorities.

According to the Public Procurement Act, several remedies are available. A financial penalty may be imposed (Section 12 of the Act), the contract may be declared ineffective (Section 13) and the duration of the contract may be shortened (Section 14). However, in practice the latter two remedies are not widely used.

In addition to the remedies mentioned above, a party, having experienced any breach of the procurement regulations by the contracting authorities, may also put forward claims for compensatory damages.

It is possible to lodge a petition for an interim injunction with the court, which may result in the suspension of the contract award procedure by the awarding authority.

It is also possible to request the contracting authority to postpone signing the contract and have the case treated as a prioritised case by KOFA.

A complaint to KOFA may relate to omissions, actions, or decisions made by the contracting authority during the procurement process and which constitute a breach of the Public Procurement Act and/or the corresponding regulations. A complaint may be filed by anyone who has a legitimate interest in having the legality of such omission, action, or decision assessed. In practice, the complaint will be lodged by a supplier that participated in the competition. For cases involving claims of illegal direct procurement, anyone can file a complaint.

In order to bring a case before the courts in Norway, the applicant must demonstrate a sufficient legal interest in the case.

Complaints to KOFA may be lodged at any time before the contract is signed, and up to six months after the contract signing or after the contracting authority cancels the competition. In cases of unlawful direct procurement, a complaint can be lodged up to two years from the contract’s signing date.

When it comes to challenging the awarding authority’s decision before the courts, one needs to distinguish between claims for interim measures and other claims:

• Interim measures may only be requested before the contract has been signed. It should be noted that, as long as a request for an interim measure is lodged and duly served upon the contracting authority within the standstill period, the contracting authority is suspended from entering into the contract.
• When it comes to other claims before the courts, for instance a claim for damages or for a declaratory judgment that the award decision was illegal, there is no general time limit for challenging a decision. However, normal limitation periods for claims apply (normally three years).

Based on KOFA’s latest annual report from 2023, the average processing time in days is 98 for advisory cases and 70 days for prioritised advisory cases.

During the last five years, KOFA has considered an average of approximately 190 cases per year.

When a complaint is lodged before KOFA, there is a fee of NOK8,000 for advisory cases and NOK1,000 for penalty cases involving allegations of illegal direct procurement. The parties bear their own costs in connection with the complaint proceedings.

If a claim is lodged before the ordinary courts, court fees are imposed. In addition, legal fees could accrue. Also, if the case is lost, the losing party may have to bear the costs of the winning party. Legal costs vary significantly depending on the type of case, the number of days in court, etc.

The modification of a contract after an award is permissible under certain conditions (Sections 28-1 and 28-2 of the Procurement Regulation).

Modifications are not allowed if they result in the contract being substantially different from the original contract. A modification is always considered substantially different if it:

• involves new conditions that, had they been part of the original competition, could have led to other suppliers potentially participating, or the contracting entity awarding the contract to another supplier;
• changes the economic balance of the contract in favour of the supplier;
• substantially expands the scope of the contract; or
• involves a change of supplier in other cases than those mentioned directly in the law.

Notwithstanding the above, the following modifications are always allowed:

• modifications undertaken according to a price revision clause or options in the original procurement documents;
• modifications that result in a price increase that is less than the EEA thresholds, or less than 10% of the original contract value for goods and service contracts or less than 15% of the original contract value for construction contracts; these only apply when the overall character of the procurement is not changed (if several modifications are made sequentially, the price increase shall be calculated based on the total increase resulting from all modifications);
• modifications involving additional works, services or supplies by the original supplier that have become necessary and that were not included in the initial procurement where a change of supplier; these only apply when:
1. a change of supplier cannot be made for technical or economic reasons;
2. a change of supplier would result in significant difficulties or substantial extra costs for the contracting entity; and/or
3. the price increase does not exceed 50% of the original contract value.
• modifications necessary due to circumstances that a diligent contracting entity could not have foreseen; these only apply when the overall character of the procurement is not changed, and the price increase does not exceed 50% of the original contract value; and
• modifications involving a change of supplier, with a new supplier entirely or partially entering into the existing supplier’s rights and obligations as a result of a corporate restructuring, such as a takeover, merger, acquisition, or bankruptcy; these only apply when the new supplier meets the original qualification requirements, no other material modifications are made to the contract, and is not aimed at circumventing the regulation.

As a general rule, Norwegian law allows for the termination of a contract if the other party has committed a serious breach of his obligations under that contract.

The Norwegian procurement legislation does, however, specify some grounds which may always lead to a contract termination (Section 28-3 of the Procurement Regulation):

• If the contract has been subject to a substantial modification, which would have required the contracting authority to conduct a new procurement procedure.
• If the contractor has, at the time of the contract award, been in a situation that should have led to their exclusion according to Section 24-2 of the Procurement Regulation. This includes instances the supplier has been convicted by final judgment or accepted a penalty for certain serious criminal offences.
• Thirdly, the termination right applies if the EFTA Court has determined that the contracting authority has violated the EEA Agreement, implying that the contract should not have been signed with the chosen supplier.

The contracting authority enjoys a certain amount of discretion when assessing certain aspects of a competition, like the selection criteria and the award criteria. The amount of discretion is, however, dependent on how the criteria have been formulated. Furthermore, the contracting authority may also cancel competitions in certain circumstances – for instance if there is lack of adequate bids, budgetary constraints, errors in procurement documents, uncertainty as to whether the procurement procedure has been lawfully carried out, etc.

There have been some interesting court decisions handed down in the past year, primarily by district courts/appellate courts. Notably, the Supreme Court has granted leave to appeal in some of these cases, which means that some important court rulings are forthcoming. One case to note is the appeal over the judgment by Hålogaland Appellate Court (24-010855ASD-HALO), scheduled for hearing on 20 May 2025. This case addresses the issue of whether a tender must be excluded due to non-conformity with the procurement documents.

Below are two key decisions from the past year.

Supreme Court Decision 4 October 2024 (HR-2024-1807-U)

According to the Procurement Regulations Section 25-1 fifth paragraph, a contract is considered signed “when both parties have signed the contract”. The effect of contract signing includes that another supplier can no longer request an interim injunction to set aside the award decision. After the contract is signed, the supplier can only seek compensation or have the contract declared void.

In this case, the question was whether the contracting authority had entered into a contract with a supplier when only the chairman of the board had signed the contract. According to the ruling of the Appellate Court, the question had to be based on regular corporate and contract law rules, where the crucial point was whether the person signing had the authority to bind the company. The case was appealed to the Supreme Court, which agreed with the reasoning of the Appellate Court.

Appellate Court Decision 13 December 2024 (LB-2024-36676)

The case concerns the question of whether a contracting authority may reserve the right to participate in a competition for the delivery of nursing home places only for suppliers that are non-profit organisations. It has been a contested issue in Norwegian law whether a contracting authority can reserve procurements of health and social services for non-profit organisations, and this issue has a significant EU/EEA law background since it entails a prima facie breach of the principle of equality.

It has been clarified both by the EFTA Court and the Court of Justice that contracts for health and social services may be reserved for non-profit organisations, but subject to certain conditions. They must be non-profit organisations and the reservation must, inter alia, contribute to the social purpose and the pursuit of the objectives of solidarity and budgetary efficiency.

The crucial question in this case was whether the contracts were “justified by, and actually contributed to, achieving social goals and the community’s well-being”. The Appellate Court was divided into a majority and a minority. The majority concluded that the reservation was essentially “politically ideologically determined” and believed that there was no evidence that the reservation for non-profit organisations would provide added value. The requirement that the reservation must actually contribute to increased achievement of social goals or the community’s well-being was therefore not met.

The Appellate Court concluded that the reservation of the contracts was unlawful. The minority fraction of the court disagreed. The case has been granted leave to appeal to the Supreme Court.

A Revision of the Current Public Procurement Legislation

On 4 November 2022, a procurement committee was established to review the regulations for public procurement and propose changes. The committee has submitted its second interim report (NOU 2024: 9), which was subject to public hearing until 31 August 2024. The Ministry is now assessing the report and statements from the public hearing.

Below are some important proposals put forward by the committee:

• structural changes in the procurement regulations, where most of the regulations are moved from regulations to the level of law;
• significant simplifications proposed for procurements below the EEA threshold value, granting contracting authorities much greater freedom and flexibility;
• introduction of a new objective clause and revised rules addressing various societal considerations (climate and environment, innovation, wage and working conditions and apprenticeships);
• an updated implementation of the EU directives on the application of review procedures to the award of public contracts;
• several measures to improve the enforcement system, aiming to bolster rule enforcement, with the emphasis on moving enforcement to the pre-contractual stage, thereby limiting lawsuits regarding damages; additionally, the proposal seeks to make enforcement accessible to small and medium-sized suppliers; and
• proposed clarifications on when competitions can and should be cancelled.

A Revision of the Regulation on Defence and Security Procurements

The Ministry of Defence, following a recommendation from the Procurement Committee, has established an external working group to explore a new law on defence and security procurement. The background for this is the political uncertainty in Europe and the need to streamline the procurement process and reduce the time required to acquire defence equipment. The law will replace the current Regulation on Defence and Security Procurements. The Ministry of Defence has assigned the working group a four-part mandate in its work. The study shall:

• propose a new law on defence and security procurement;
• assess how the new law should interact with the regulations under the Security Act concerning security-graded procurement and contribute to simplification for public authorities and suppliers;
• ensure that the special conditions applicable to defence and security procurement are maintained within the framework of EEA law and WTO law; and
• evaluate the need for further adaptations in the new law due to the current security policy situation in Europe.

The working group is scheduled to deliver a report by the summer of 2025. The report will be publicly available.

Preparation of Possible New EU Procurement Rules

Finally, the Ministry of Trade and Fisheries, being responsible for the public procurement legislation, has established a national reference group which will closely follow the possible revision of the EU procurement rules.