NORWAY Law and Practice Contributed by: Hedvig Moe, Pål Lieungh, Espen Randen and Elin Ibsen Gustavsen, Advokatfirmaet Thommessen AS
• FOSA Part I – between NOK500,000 and EEA thresholds: Below the EEA thresholds, FOSA Part I applies, according to the fundamental procure - ment principles – competition, non-discrimination, proportionality and documentation – supplemented by simplified procedural protocols in the FOSA annexes. RAF Parts I and II likewise apply. • Article 123 – exempted procurements: Where a procurement is wholly exempted under Article 123, the contracting authority is not bound by LOA, FOA or FOSA, but must comply with RAF Part III and ensure traceability throughout. Competition remains the default, and exceptions must be justi - fied in writing (see 2.6 Direct Contract Awards and Single-Source Procurement ). Open tendering is prohibited; the contracting authority selects quali - fied suppliers. RAF Part III also prescribes rules on qualification, tender documentation, evaluation criteria and negotiation procedures, but does not create enforceable third-party rights. Procurements in the defence sector that do not fall within FOSA’s scope – for instance, non-sensitive goods or ser - vices without a defence-specific character – are conducted under the general procurement regula - tions (FOA or the other applicable regulations). 2.6 Direct Contract Awards and Single- Source Procurement Direct contract awards and single-source procure - ment are permitted, but only in defined circumstances and subject to specific controls. FOSA permits negotiated procedure without prior publication – the closest equivalent to a direct award in FOSA – only in narrowly defined circumstances, including: where no suitable tenders have been received; where only one supplier can perform the contract for technical reasons or exclusive rights; where strictly necessary urgency caused by unfore - seeable events precludes normal timescales; where additional deliveries from the original supplier are necessary for interchangeability or interoperability; and for repetition of similar works or services. These exceptions must be interpreted restrictively. Procurements exempted under Article 123 are not subject to statutory restrictions on single-source procurement, but remain governed by RAF Part III.
Competition is the default, with exceptions only where national security interests require it, where only one supplier can meet requirements, for minor supple - mentary orders to cover unforeseen needs, or where unforeseen circumstances prevent deferral. Every exemption must be documented. Where procurement is conducted without competition – or where competition has failed (eg, only one tender received), the contracting authority must carry out a cost control review for contracts exceeding NOK5 mil - lion (excluding VAT), with full access to the supplier’s cost data and records. 2.7 Offsets, Industrial Participation and Sovereign Capability Requirements Norway imposes industrial co-operation (offset) obli - gations on foreign defence contractors under the Regulations for Industrial Cooperation related to Defence Acquisitions from Abroad (BIF), Annex 6 to RAF. Industrial co-operation applies only to procure - ments justified under Article 123 – not to procure - ments under FOA or FOSA to the extent governed by EU/EEA-derived rules. An industrial co-operation agreement must be con - cluded before the main contract is signed. The obli - gation applies to all foreign defence procurements exempted under Article 123 with a contract value of NOK100 million or above (excluding VAT). Where subsequent options bring the cumulative value above NOK100 million within five years, the obligation is trig - gered. For major acquisitions valued at NOK500 mil - lion or above, a dedicated industrial co-operation plan must be prepared early in the procurement. The supplier must commit to industrial co-operation with a total value of up to 100% of the contract val - ue. At least 50% of the obligation must be fulfilled in Category I (strategic projects – projects of strategic importance to the Armed Forces or national secu - rity). A maximum of 25% may be fulfilled in Category III (projects related to the protection of fundamental national functions outside the defence sector). Qualifying industrial co-operation projects include technology collaboration and joint R&D; market devel - opment and access assistance; purchases of defence
140 D EFENCE CON TRACTS 2 026
CHAMBERS.COM
Powered by FlippingBook