Part 2: Swedish procurement roundup 2025 – the year's key case law

The second part of Tendium's "Swedish Procurement Roundup" mini-series, summarising the procurement year, covers interesting case law. Rulings from every level will be presented: the Court of Justice of the EU (CJEU), the Supreme Administrative Court (HFD), the Administrative Courts of Appeal (KR), and the Administrative Courts (FR). Missed the first part on 2025's new procurement rules and key inquiries? Click here to read Part 1.

CJEU: Free to exclude suppliers from outside the EU

In brief: the CJEU has found that it's up to the contracting authority to decide whether companies from third countries may take part in a procurement, and, if they may, whether their tenders should be treated differently – something that can be regulated in the procurement documents.

The EU is party to an agreement (the WTO's Government Procurement Agreement, GPA) that ensures suppliers from countries that have joined the agreement have equal access to each other's procurements. The CJEU has established that suppliers from countries not party to the GPA, or similar agreements, have no rights under the procurement directives, and can therefore be excluded without any specific grounds.

The CJEU also emphasises that member states have no right to exclude third-country suppliers under their own national laws – only the EU has exclusive competence to regulate this (though it hasn't done so). In one of the cases, Romania had introduced a rule on automatic exclusion of suppliers from countries not covered by the GPA.

HFD: Transparency applies even during a review

In brief: even if a procurement is under review, the procurement documents become public records as soon as the award decision has been made.

A contracting authority procured the manufacturing of registration plates. In connection with this, a visual inspection of the plates was carried out and the results written down. A member of the public wanted access to these findings, but the authority claimed the document wasn't a public record since the procurement was under review.

The question in the case was whether a review means a procurement matter isn't yet finally processed under the Freedom of the Press Act. The HFD found that a document becomes a public record once the matter it belongs to is finally processed – which, in procurement, happens when the award decision is issued. It doesn't matter that the procurement is under review, since that doesn't affect the point in time when the matter is considered finally processed.

The ruling is significant because it clarifies that, from the moment of the award decision, the procurement documents are public records. A requested document must therefore be released unless confidentiality applies. The ruling makes clear that as a supplier you can request documents directly after the award decision, even while the procurement is under review.

Administrative Court of Appeal rulings 2025 – A selection

Formal errors allowed on equal-treatment grounds

In brief: a contracting authority didn't act contrary to the principle of equal treatment when it qualified two tenders that failed to meet a mandatory formal requirement (a page limit on the quality plan), because both companies were treated the same and both made the same mistake.

A municipality procured goods across four lots, where Company A won one lot and Company B won the rest. Company A sought a review, arguing Company B's tender (a four-page quality plan against a two-page limit) breached a mandatory requirement and should be rejected. The catch: Company A's own quality plan also exceeded the limit (five pages).

Both the lower and appeal courts found that both companies had made the same mistake, and that the municipality therefore hadn't breached equal treatment. The ruling is interesting because the courts chose not to disqualify either tenderer despite the formal breach, instead assessing the matter through the lens of equal treatment – had only one tenderer made the mistake, the outcome would likely have been different.

Wrong to evaluate tenders with formal errors

In brief: a contracting authority was found to have breached LOU by evaluating two tenders that failed to meet a mandatory requirement to state the start date of reference assignments.

A digital parking service was procured, requiring tenderers to state the start date for two reference assignments. Two tenderers omitted the day, month, and year. One tenderer sought a review and requested a new evaluation.

The Administrative Court held that stating the exact day, month and year had no adequate link to the purpose of the procurement, and that the tenders shouldn't be rejected. The Administrative Court of Appeal disagreed, holding that tenderers should be able to assume the requirements in a procurement are important enough that anyone unable to meet them would refrain from submitting a tender – and that it isn't acceptable to retroactively reinterpret a requirement by invoking proportionality, since that conflicts with equal treatment and transparency.

The ruling is a call for contracting authorities not to depart from mandatory requirements, and a reminder to suppliers to be careful when submitting tenders.

How much a tenderer is expected to understand

In brief: a tenderer whose tender was rejected argued the procurement documents were too unclear, particularly regarding the meaning of "bidding as a group." The Administrative Court of Appeal disagreed – a reasonably informed tenderer should have understood the difference between a consortium, subcontractors, and reliance on another entity's capacity.

The contracting authority rejected a tender citing an incorrect "yes" answer to the question of whether the bid was submitted as a group, and missing mandatory information in the ESPD form. The Administrative Court sided with the tenderer, finding the documents unclear. The Administrative Court of Appeal, however, found the documents clear enough, and that a reasonably informed, normally diligent tenderer should understand the differences between a consortium, subcontractors, and reliance on capacity.

The ruling shows that suppliers are held to a high standard of understanding the procurement documents and complying with mandatory requirements, even for relatively minor formal errors.

Coming up: the HFD will rule on two exceptions

The lease exception for mixed contracts

In brief: the HFD will rule on the lease exception – what counts as a contract's "main subject matter" in mixed contracts?

A municipality terminated its lease and entered into a new contract with the same landlord for the same building – an upper-secondary school – plus an extension. The Swedish Competition Authority considered this a works contract that should have been procured under LOU, and that the municipality should pay a procurement penalty of SEK 3 million. The municipality argued the lease exception applied.

The lease exception means renting property isn't covered by LOU, but lease agreements sometimes include elements of construction work. In that case it's a mixed contract, where the main subject matter needs to be identified. Previous case law has found that the lease itself is the contract's "main subject matter" and that the extension is of secondary importance.

Internal procurement?

In brief: the HFD will rule on when a company jointly controlled by municipalities can be said to be working on the municipalities' behalf, such that the purchase can be made as an internal procurement.

The HFD will hear a case where 14 municipalities were criticised by the Competition Authority for buying waste services directly from a waste company they own themselves, without running a procurement. The Administrative Court of Appeal found this was permitted under the so-called "activity criterion," which allows internal procurement between owners and their companies, regardless of who was the recipient or where payment came from. The ruling shows how complicated it is to determine what counts as internal activity when a municipally owned company also sells to third parties.