NORWAY Law and Practice Contributed by: Hedvig Moe, Pål Lieungh, Espen Randen and Elin Ibsen Gustavsen, Advokatfirmaet Thommessen AS
2.4 Restricted and Classified Procurement A “classified procurement” ( sikkerhetsgradert anskaf- felse ) is defined in Security Act Section 9-1 as any procurement where the supplier may gain access to, or will produce, classified information, or gain access to object or infrastructure considered as nationally critical under Security Act, Chapter 7. Therefore, when a procurement is classified, the requirements of the Security Act apply in addition to the procedural rules of FOSA. Before a classified procurement is initiated, the con - tracting authority must enter into a security agreement ( sikkerhetsavtale ) with the supplier. Suppliers requir - ing access to information classified at CONFIDEN - TIAL level or above must hold a valid facility security clearance ( leverandørklarering ), which is granted only where there is no reasonable basis for doubting the supplier’s security suitability and must be re-evaluated if the supplier’s ownership structure, board composi - tion or management changes (Section 9-3). For foreign suppliers, the contracting authority must request that NSM arrange for the competent author - ity in the supplier’s home state verify that the supplier meets the relevant clearance requirements (FOSA, Section 3-16). Individual personnel who will access classified information must hold personal security clearances at the appropriate level. 2.5 Tender Procedures for Defence Contracts • FOSA Part II – above EEA thresholds: For defence and security procurements exceeding the EEA thresholds (see 2.3 Types of Contracts and Value Thresholds ), FOSA Part II imposes the full proce - dural regime derived from EU Directive 2009/81. Contracting authorities must use either a restricted procedure or a negotiated procedure with prior publication; competitive dialogue may be used for particularly complex contracts. Contracts must be published in Doffin and TED. FOSA Part II also includes detailed rules on qualification criteria, technical specifications, supply security require - ments, award criteria, standstill periods and remedies. RAF Parts I and II apply as additional internal procedural requirements (see 2.1 Defence Procurement Legislation ).
curing defence materiel, classified goods or services for specific defence purposes will fall within the scope of FOSA, regardless of whether it is a defence entity. In practice, the principal contracting authority in the defence sector is FMA, which also frequently con - ducts procurements on behalf of other government bodies, such as the Ministry of Defence, NSM and PST. The Defence Estates Agency procures construc - tion and works contracts related to Armed Forces real estate (see 1.2 Competent Authorities ). 2.3 Types of Contracts and Value Thresholds All public procurements in Norway – whether goods, services or construction works – with a value of NOK500,000 or more (excl. VAT) are subject to LOA. Procurements concerning defence materiel, classified material, works, goods and services directly related to such materiel and its life cycle, or classified works and services for defence purposes fall within FOSA. Contracts not meeting FOSA criteria are governed by general procurement regulations unless exempted (see 2.1 Defence Procurement Legislation ). FOSA covers supply of “defence materiel” (includ - ing weapon systems, ammunition, vehicles and sub- components), supply of “classified materiel”, main - tenance, repair and support services through the life cycle, military construction works, classified construc - tion works, classified services, and R&D services (pro - vided the contracting authority fully funds and retains the results). FOSA operates with a two-tier threshold structure: • Part I sets out fundamental principles such as competition, non-discrimination and proportional - ity, and applies to all defence and security procure - ments valued at NOK500,000 or above. • Part II implements EU Directive 2009/81, imposes the full procedural regime (see 2.5 Tender Proce- dures for Defence Contracts ) and applies above the EEA thresholds of NOK5 million (excluding VAT) for supply and service contracts and NOK62.9 mil - lion (excluding VAT) for construction contracts.
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