Automatic Rejection of Procurement Tenders for Deviations of Mandatory Requirements – An Opportunity for Clarity Lost?

The Norwegian Supreme Court’s ruling in HR-2025-1098-A

On Friday the 13th of June 2025 the Norwegian Supreme Court gave their judgment case HR-2025-1098-A which concerned public procurement law, and more specifically a question of rejection of tenders for non-compliance with technical specifications. In the judgment the Supreme Court also had to consider EEA law and apply this to the legal questions in the case. The judgment therefore gives an interesting example of the application of EEA law to these questions in national law. This post gives a short presentation of the judgment, the main points regarding the application of relevant EEA law and finally one legal question where the judgment may cause some unclarity.

Author: Postdoctoral fellow Linda Midtun, CENTENOL and University of Bergen 

According to the Norwegian statutory instrument on public procurement § 24-8 (1) b, which is intended to reflect the ECJ’s judgment in case C-243/89 Storebælt, contracting authorities have a duty to reject tenders that “contains significant deviations from the procurement documents” (my translation). In the case, the parties agreed that the winning tender deviated from the specifications as it included a different method of protecting a steel construction that was part of the works contract from corrosion than the method set out in the specifications. The parties also agreed that if the method set out in the specification should not be regarded as an absolute or mandatory requirement that the tenders needed to fulfil to be eligible to win the contract, the deviation was not significant.

The question for the Supreme Court was thus whether the method for protecting the construction from corrosion constituted a mandatory requirement. When answering this question, the Supreme Court considered two claims from the parties on the assessment of whether a specific element in the procurement documents constitutes a mandatory requirement.

The first was a claim that for a requirement to be mandatory, this must be expressed clearly and unambiguously by the contracting authority in the procurement documents. The second claim was that the technical specifications should always be considered mandatory requirements.

The Court saw the first as a claim that there was another and stricter norm for the interpretation of procurement documents when considering whether a requirement is absolute or mandatory, than what follows from an objective interpretation of procurement documents. This view was not supported by the Court, who did not see reason to set out any special principles or presumptions for this interpretation. Thus, the Supreme Court stated that the assessment of whether an element in the procurement documents is a mandatory requirement is whether a reasonably informed tenderer exercising ordinary care will understand that it is mandatory based on an objective interpretation. The wording chosen by the Supreme Court here reflects practice from the ECJ, for example C-27/15 Pippo Pizzo paragraph 36, where it stated that “all the conditions and detailed rules of the award procedure must be drawn up in a clear, precise and unequivocal manner in the contract notice or specifications so that, first, all reasonably informed tenderers exercising ordinary care can understand their exact significance and interpret them in the same way and, second, the contracting authority is able to ascertain whether the tenders submitted satisfy the criteria applying to the contract in question”.

Concerning the second claim, there was nothing in the Norwegian legal sources to suggest such an interpretation. The question was therefore whether Directive 2014/24 and practice from the ECJ demanded a stricter and more comprehensive duty to reject due to deviations from the technical specifications. From an EEA perspective, this is the most interesting part of the decision, as it shows the court’s interpretation of relevant EEA legal sources.

The Court started its interpretation in art. 56 of the Directive. It said that the wording is quite strict, which could indicate that no deviations could be accepted, but that the provision should be interpreted in light of the general principle of proportionality. To do this the Court applied case law from the ECJ and took the Storebælt case as a starting point. Based on the ECJ’s statement in paragraph 40 that the duty to comply with the principle of equal treatment would not be satisfied if tenderers “were allowed to depart from the basic terms of the tender conditions”, the Supreme Court found that the judgment expressed a duty to reject tenders that fail to comply with basic tender conditions. This corresponded well with the rule in the Norwegian statutory instrument. The Court did not find support for a stricter rule in later case law of the ECJ that the complainant had referred to (e.g. C-561/12 Nordecon, C-278/14 Enterprise Focused Solutions and C-298/15 Borta). A remark from the Court that may be worth noting in connection with its view on the case law is that several of the judgments concerned basic elements, and in the Court’s opinion general statements on the duty to reject in these judgments should not signify that the same should apply to all lesser deviations. In connection with this the Court also took into account the ECJ’s statements in C-336/12 Manova paragraph 29 that “the application of the principle of equal treatment to public procurement procedures does not constitute an end in itself, but must be viewed in the light of the aims that it is intended to achieve”.

Overall, through its interpretation, the Supreme Court clarifies important questions concerning absolute or mandatory requirements for Norwegian practitioners of procurement law. However, one element of the judgment may cause more confusion than clarity. At the start of its assessment, the Court expressed that it seems unclear whether deviations from mandatory requirements must result in rejection in every case. However, in the end, the Supreme Court found it unnecessary to assess and conclude on this question, as it had found that the method for corrosion protection in the technical specifications was not a mandatory requirement.

By calling attention to this unclear legal question and then not discussing and concluding on the correct interpretation, the judgment may well open the door for more legal uncertainty and to questioning the duty to reject when mandatory requirements are not fulfilled. In this regard it could be noted that the court stated, in connection with the question of whether all technical specifications were mandatory requirements, that if the contracting authority has expressed in the procurement documents that non-fulfilment of a requirement will lead to exclusion, the starting point is that the contracting authority has a duty to reject tenders that deviate from the requirement. This seems to reflect previous statements from case law from the ECJ. For example, case C-336/12 Manova paragraphs 39-40, where the ECJ explained that the contracting authority may request correction or amplification of details in applications to take part in the procedure but that “this would not be the case if the contract documents required provision of the missing particulars or information, on pain of exclusion”. However, as the Supreme Court sets this as a starting point, their statement does not completely clarify the question.

As the question of duty to reject tenders that fail to comply with mandatory or absolute requirements concerns a core consequence of this characterization, it is unfortunate that the Supreme Court did not take the opportunity to clarify this question. When the Court instead chose only to highlight the unclear legal situation, it could open the possibility for future disputes on the topic. 

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How to cite

Midtun, Linda (2025): Automatic Rejection of Procurement Tenders for Deviations of Mandatory Requirements – An Opportunity for Clarity Lost? The Norwegian Supreme Court’s ruling in HR-2025-1098-A. Blog. EFTA-Studies.org.