NORWAY Law and Practice Contributed by: Hedvig Moe, Pål Lieungh, Espen Randen and Elin Ibsen Gustavsen, Advokatfirmaet Thommessen AS
This provides a broad basis for excluding suppliers on national security grounds, including concerns related to foreign ownership or influence, without requiring a conviction. The rules apply correspondingly to sub- contractors (Section 11-12 (4)). FOSA also sets out rules on mandatory and dis - cretionary rejection of tenders (Sections 11-13 and 11-14), covering late tenders, tenders with material reservations or deviations from specifications, and abnormally low tenders, which may only be rejected after examining a written explanation. For procurements exempted under Article 123, the contracting authority has significantly greater discre - tion in selecting which suppliers to invite and exclude. 2.11 Transparency and Confidentiality The transparency obligations in defence procurement depend on whether the procurement is conducted under the statutory rules or is exempted under Article 123. For procurements under FOSA (above EEA thresh - olds), the full EU transparency regime applies. The contracting authority must publish in Doffin and TED, and issue a contract award notice. Upon award, all participating suppliers must be notified simultane - ously with a written statement of reasons identifying the successful tenderer and explaining the relative advantages of its tender (FOSA, Section 13-3). A mandatory standstill period applies before contract signature. Rejected tenderers must receive prompt written reasons (Section 11-16). However, the contracting authority may withhold infor - mation from its statement of reasons where disclosure would be contrary to defence or security interests, would harm legitimate commercial interests, or could undermine fair competition (FOSA, Section 11-16 (5)). A general duty of confidentiality applies to the content of tenders and other commercially sensitive informa - tion received during the process (Section 3-4). For procurements exempted under Article 123, no statutory publication or standstill obligations apply. Transparency is governed by RAF Part III, which requires traceability, a protocol recording all relevant
information, and prompt notification to all tenderers with reasons. There is, however, no obligation to pub - lish a prior notice – the contracting authority selects which suppliers receive the tender documentation. Where a procurement is classified under Security Act, Chapter 9, the supplier cannot be given access to classified specifications or tender documentation until a security agreement has been concluded and, where required, the supplier and its personnel hold valid security clearances (see 2.4 Restricted and Classi- fied Procurement ). As a general rule, procurement documents (including the tenders) held by public authorities are subject to the Freedom of Information Act, which entitles any person to request access. This right is limited by the confidentiality rules of the Public Administration Act, which protect business secrets, and by the Security Act which requires that classified information be with - held regardless of any general transparency obliga - tions. 2.12 Modification and Termination of Defence Contracts For procurements conducted under FOSA (and the other procurement regulations, such as FOA), post- award modifications are limited by the general EU/ EEA procurement law principle that a material modifi - cation of an existing contract constitutes a new con - tract requiring a new procurement procedure. A modification is material where it would have allowed admission of other tenderers or acceptance of a differ - ent tender, extends the scope considerably, or chang - es the economic balance in the contractor’s favour beyond the original terms. Non-material modifications are permissible. For procurements exempted under Article 123, the prohibition on material modifications does not apply as a matter of procurement law, because the statu - tory procurement framework does not govern these contracts. FOSA does not establish specific termination grounds. Termination rights are governed by contract terms supplemented by general contract law. Termination for
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