1. The Laws
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1. The Laws Start Comparison
a. What is the applicable legislation?

There are four Swedish procurement acts (together the "Acts"). These are the Public Procurement Act (Sw. lag 2016:1145 om offentlig upphandling), the Utilities Procurement Act (Sw. lag (2016:1146) om upphandling inom försörjningssektorerna), the Concessions Procurement Act (Sw. lag (2016:1147) om koncessioner) and the Defense Procurement Act (Sw. lag (2011:1029) om upphandling på försvars- och säkerhetsområdet). The Public Procurement Act, the Utilities Procurement Act and the Concessions Procurement Act were enacted on 1 January 2017. Please note, however, that in a transition period the older acts that where replaced will apply, e.g. for procurement procedures started before 1 January 2017. The Defense Procurement Act was enacted on 1 November 2011.

b. Does the legislation relate to or interact with any applicable trade agreement, such as the European Union procurement rules, WTO Government Procurement Agreement (GPA) or the procurement requirements of the North American Free Trade Agreement (“NAFTA”)?

The Acts, constituting a complete set of legislation, implement the six existing EU directives on public procurement; namely:

  • Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts;
  • Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors;
  • Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC;
  • Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2014/18 EC;
  • Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts text with EEA relevance;
  • Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts; and
  • Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities/entities in the fields of defense and security, and amending Directives 2004/17/EC and 2004/18/EC.

These in turn are influenced by the WTO Government Procurement Agreement ("GPA") as the European Union and each of its 28 Member States are signatories to the GPA. The scope of the GPA covers any law, regulation, procedure or practice regarding any procurement by any contractual means as soon as the procuring entity and the type of contract are listed in Appendix I to the GPA and the threshold values stated there are exceeded.

c. What are the basic underlying principles of the legal framework?

The Acts are based on the five fundamental principles of EU law with regard to public procurement, i.e. the principles of non-discrimination, equal treatment, transparency (openness and predictability), proportionality and mutual recognition.

d. Is aerospace and defense procurement treated differently from other types of procurement?

Defense procurement is treated differently as of 1 November 2011 when the Defense Procurement Act was enacted. The Defense Procurement Act grants the contracting authority/entity a larger scope of discretion by, e.g., allowing negotiated procedures at all times.

Aerospace procurement is not treated differently in so far as it is not considered being within the fields of defense or security.