By: Pontus Sörlin
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Procurement requirements apply to category rather than actual screen size
The Court of Appeal finds that procurement requirements regarding a monitor that refers to industry standards – instead of exact requirements for dimensions and resolution capacity – do not contravene the principle of transparency in the Public Procurement Act.
Region Sörmland holds a public procurement regarding materials for arthroscopies where only one supplier is to be accepted.
The company Conmed wins the procurement while Arthrex ends up in second place.
Arthrex claims, however, that Conmed’s tender does not meet the procurement requirements and that the company’s tender should therefore not be accepted.
According to the requirements, the material procured must in part consist of a 32-inch monitor that can handle 4k resolution.
Arthrex points out that the screen on Conmed’s monitor is only 31 inches and that it can also only handle video, not image, in 4k resolution.
It is therefore of the opinion that the region has accepted Conmed as a supplier on incorrect grounds and is applying for an appeal to the Administrative Court with a request that the procurement be redone.
The region, for its part, believes that the size requirement refers to the entire monitor and not just the screen.
In the event that the court deems the region’s declaration to be reasonable, Arthrex believes that the procurement requirements are unclear regarding the size of the monitor and thus contravenes the principle of transparency in ch. Section 1 of the Public Procurement Act (LOU).
The principle of transparency means, among other things, that procurement documents must be clearly formulated so that it is clear to suppliers on what grounds contracts will be awarded.
The district court states that the region’s interpretation could admittedly lead to strange consequences in terms of what must reasonably be the purpose of the requirement for the size of the monitor.
However, it is considered that the wording provides scope for different interpretations, which is why it is considered possible that the requirement refers to the size of the monitor and not the screen.
As the requirement can be interpreted in different ways, the court finds that the wording is unclear and thus contrary to the principle of openness in LOU.
The district court therefore decides that the procurement shall be redone in accordance with ch.
6 § LOU.
The region later appeals to the Court of Appeal, which takes the case to trial.
In addition to what has been stated in the Administrative Court, the region emphasizes that a 32-inch monitor with 4k resolution is seen as an industry standard rather than a requirement for exact dimensions and resolution capacity.
It is thus believed that this is an accepted product name, which is why the requirement is not unclear and thus does not contravene the principle of transparency.
As proof of its claim, the region invokes, among other things, a certificate of CE marking in which the monitor is named as belonging to the category in question.
The Court of Appeal finds that the region has proven that the requirement applies to a certain category of product instead of exact dimensions and dissolution capacity and that it can be expected that a supplier in the industry is aware of this.
The procurement requirements regarding the monitor are therefore not contrary to the principle of transparency according to the court.
The appeal is thus upheld and the region wins the case.