Reference assignments for procurement of media mediation met the requirements
Reference assignments for procurement of media mediation met the requirements
A company that has been accepted as supplier number two in a public procurement is of the opinion that the tender from the company that has been accepted as number one did not comply with the procurement rules. Supplier number two argues that the reference assignments from subcontractors that supplier number one stated in its tender were not carried out in relation to external customers.
However, the Administrative Court of Appeal finds that the end customers for the assignments were external and that they were therefore specified in accordance with the procurement rules.
The City of Gothenburg is holding a procurement of media intermediation services. Several suppliers are accepted, of which Brightmedia is ranked number one and Nowa Kommunikation is ranked number two. However, Nowa is of the opinion that Brightmedia’s tender does not meet all the mandatory procurement requirements. According to the requirements, a supplier must, among other things, specify one external reference assignment per specified subcontractor.In other words, it may not be a matter of, for example, assignments between the supplier and the subcontractor. Another requirement is that the specified reference assignment must not have been carried out more than three years ago.
Brigthmedia has provided reference assignments from two subcontractors; V-TAB and Kantar Sifo. However, the referenced assignments were carried out by V-TAB and Kantar Sifo in their capacity as subcontractors to Brightmedia, which had the role of main supplier to the City of Gothenburg and Kungsbacka Municipality, respectively. Since the assignments have been carried out on behalf of the municipalities, Brightmedia believes that they should be regarded as external. Nowa believes, however, that the assignments were between Brightmedia and the subcontractors and are therefore prohibited as references according to the procurement requirements. In addition, Nowa claims that the reference assignment from Kantar Sifo was carried out more than three years earlier. Thus, Nowa is of the opinion that Brightmedia’s tender should not have been accepted, which is why it is applying for a review of the City of Gothenburg’s decision at the Administrative Court.
The Administrative Court looks at the evidence in the case and notes that Nowa has not presented any investigation to prove that the assignments should be seen as internal due to the fact that V-TAB and Kantar Sifo were subcontractors to Brightmedia. On the other hand, both the City of Gothenburg and the Municipality of Kungsbacka have issued statements that confirm that the reference assignments were carried out for the municipalities. Nor has Nowa adduced any evidence to show that the reference assignment from Kantar Sifo was carried out more than three years ago. The Court therefore finds nothing to indicate that the procurement was handled incorrectly, which is why the City of Gothenburg wins the case. Nowa later appeals to the Administrative Court of Appeal, which takes up the case.
In addition to the evidence presented in the Administrative Court, the Municipality of Gothenburg refers to a statement from the municipality’s committee for purchasing and procurement. According to the opinion, the requirement that reference assignments must be external does not prohibit them from being carried out as subcontractors. The Board therefore believes that the reference assignments meet the requirements in that the municipalities, and not Brightmedia, have been the end customers. The Court agrees with the Board’s perspective and therefore considers that the reference assignments should be seen as external. Furthermore, the Administrative Court of Appeal agrees with the Administrative Court’s view that Nowa has not proved that the reference assignment by Kantar Sifo was carried out more than three years before the procurement. In summary, the Administrative Court of Appeal thus essentially agrees with the lower court’s assessment, which means that the procurement is accepted.