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Offentlige anskaffelser

Offentlige anskaffelser. Regelverkets virkeområde. Oversikt. Lovens system Offanskl. § 2 Oppdragsgivere Aktivitet Verdi Derogasjon. Hjemmel for forskrift om Unntak fra virkeområdet Utvidelse av virkeområdet Innenfor loven - ulike forskrifter

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Offentlige anskaffelser

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  1. Offentlige anskaffelser Regelverkets virkeområde

  2. Oversikt • Lovens system • Offanskl. § 2 • Oppdragsgivere • Aktivitet • Verdi • Derogasjon. Hjemmel for forskrift om • Unntak fra virkeområdet • Utvidelse av virkeområdet • Innenfor loven - ulike forskrifter • Etter kontraktstype (Konsesjonskontrakter og andre kontrakter) • Etter sektor (klassisk sektor – forsyningssektoren)

  3. Oppdragsgivere • Offanskl. § 2 annet ledd • Unntak • Anskaffelser som kan unntas etter EØS art. 123, jf. anskf. § 2-2 • Rt. 2005 s. 1638, Ponchodommen • KOFA-2014-86, rammeavtale for lastebiler • Forskriftsfestede unntak • Anskf. § 2-3, tjenestekontrakter inngått med innehaver av enerett til å utføre tjenesten • Anskf. § 2-4, Visse tjenestekontrakter • Anskaffelsesforskriften kap. 3

  4. Aktivitetskravet • «når oppdragsgivere … inngår vare- , tjeneste- eller bygge- og anleggskontrakter, herunder konsesjonskontrakter, eller gjennomfører plan- og designkonkurranser» • Anslått verdi over 100 000 kr. eks moms • To problemstillinger • Blandede anskaffelser • Kontraktsbegrepet

  5. Aktivitetskravet – blandede anskaffelser • Anskaffelsesforskriften kapittel 6, 2014/24 art. 3 • Tilsvarende i konsesjonskontraktsforskriften kap. 6, og forsyningsvirksomhetsforskriften kap. 6 – og de bakenforliggende direktivene • Fem situasjoner • Alle omfattet av forskriften - § 6-1 • Delvis omfattet av forskriften, delvis unntatt fra anskaffelsesregelverket, § 6-2 • Delvis omfattet av forskriften, delvis knyttet til utøvelse av forsyningsvirksomhet, § 6-3 • Delvis omfattet av forskriften og delvis innebærer en konsesjon, § 6-4 • Delvis omfattet og delvis inneholder forsvars- eller sikkerhetselementer, § 6-5

  6. Aktivitetskravet – sammensatte kontrakter, utenfor og innenfor • Det enkle eksempelet: Kjøp av eksisterende bygninger, jf. anskf. § 2-4 a), 2014/24 art. 10 (a) • Selger tilpasser salgsobjektet til oppdragsgivers ønsker – blir det en bygge- og anleggskontrakt? • Anskf. § 6-2 (2) • 2014/24 art. 3 nr. 6: «Where the different parts of a given contract are objectively not separable, the applicable legal regime shall be determined on the basis of the main subject-matter of that contract»

  7. Aktiviteteskravet – sammensatte kontrakter, utenfor og innenfor • C-149/08, Mehiläinen Oy • In that connection, it is clear from the case-law of the Court that, as regards a mixed contract, the different aspects of which are inseparably linked and thus form an indivisible whole, that contract must be examined as a whole for the purposes of its legal classification in the light of the rules on public contracts, and must be assessed on the basis of the rules which govern the aspect which constitutes the main object or predominant feature of the contract (Joined Cases C‑145/08 and C‑149/08 Club Hotel Loutraki and Others [2010] ECR I‑0000, paragraphs 48 and 49 and the case-law cited).

  8. Salg og tilbakeleie • Problemet: salg og etterfølgende leie, eller i realiteten en bygge- og anleggskontrakt? • C-536/07, traktatbruddsak mot Tyskland (Köln Messe) • Faktum

  9. EU-domstolens vurdering, C-536/07 • 53      Second, it is necessary to consider the legal classification of the project at issue for the purposes of ascertaining whether it constitutes a public works contract within the meaning of the Community legislation. • 54      In that regard, it must be borne in mind first of all that, according to the case-law of the Court, that legal classification falls under Community law and the classification given under national law is irrelevant for that purpose (see, to that effect, Auroux and Others, paragraph 40 and case-law cited). Likewise, the classification of a contract given by the contracting parties is not decisive either.

  10. EU-domstolens vurdering, C-536/07 • 55      Next, it must be pointed out that the definition of ‘public works contract’ in Article 1(a) of Directive 93/37 includes all operations in which a contract for pecuniary interest, irrespective of its formal classification, is concluded between a contracting authority and a contractor and has as its object the execution by the latter of a ‘work’ within the meaning of Article 1(c) of the directive. The essential criterion in that respect is that the work should be executed in accordance with the requirements specified by the contracting authority; the means of that execution are immaterial.

  11. EU-domstolens vurdering, C-536/07 • 56      As regards the object of the project at issue, it must be noted that the main contract, concluded on 6 August 2004 by the City of Cologne and GKM‑GbR, is formally described as a ‘lease’ and does, in fact, contain certain elements of a lease. However, as at 6 August 2004, the building works in question had not even started. Consequently, that contract could not have had as its immediate object the lease of buildings whose construction had not yet begun. Therefore, the main purpose of that contract could, logically, only be the construction of those buildings which were subsequently required to be handed over to the City of Cologne under the terms of a contractual relationship described as a ‘lease’.

  12. EU-domstolens vurdering, C-536/07 • 57      According to the case-law of the Court, where a contract contains elements relating both to a public works contract and another type of public contract, it is the main purpose of the contract which determines the Community rules applicable. • 58      It must be held, moreover, that the works concerned were executed in accordance with the very detailed specifications set out by the City of Cologne in the main contract. It is apparent from that contract and its annexes that those specifications, relating to a precise description of the buildings to be constructed, their quality and their fixtures and fittings, far exceed the usual requirements of a tenant in relation to newly-constructed premises of a certain size.

  13. EU-domstolens vurdering, C-536/07 • 59      Accordingly, it must be concluded that the main contract had as its main object the construction of the exhibition halls concerned in accordance with the requirements specified by the City of Cologne. Moreover, those halls constitute a ‘work’ within the meaning of Article 1(c) of Directive 93/37 in so far as they are sufficient of themselves to fulfil an economic function, and their value is far higher than the threshold laid down under Article 6 of that directive. In addition, that contract was concluded for pecuniary interest, since GKM‑GbR acted in this case as a contractor,

  14. EU-domstolens vurdering, C-536/07 • irrespective of the fact that it arranged for execution of that work through sub-contracting (see, to that effect, Case C‑399/98 Ordine degli Architetti and Others [2001] ECR I‑5409, paragraph 90), and the City of Cologne is a contracting authority. This contract must therefore be classified as a public works contract within the meaning of Article 1(a) of Directive 93/37.

  15. EU-domstolens vurdering, C-536/07 • 60      That conclusion is not challenged by the Federal Republic of Germany’s argument that the total amount to be paid to GKM‑GbR by way of rent, amounting ultimately to approximately EUR 600 million, is much higher than the cost of construction of the works – approximately EUR 235 million – proving that the ‘services’ element of the project at issue is predominant.

  16. EU-domstolens vurdering, C-536/07 • 61      In fact, the decisive element for the purposes of the classification of a public contract such as that at issue here is the main object of that contract, not the amount paid to the contractor or the arrangements for payment. In addition, a direct comparison of the two amounts referred to above, in absolute terms, is not possible because the approximate sum of EUR 600 million will be paid in a series of monthly instalments over a period of almost 30 years, whereas the sum of

  17. EU-domstolens vurdering, C-536/07 • EUR 235 million corresponds to the value of the cost of the works on their completion at the end of 2005. In actual fact, the sum of EUR 600 million, at the values current when the works were completed, is very close to EUR 235 million. In any event, even if part of that sum of EUR 600 million were to represent the consideration for an element inherent in the letting, that part would necessarily be insignificant and cannot alter the classification of the contract concerned.

  18. EU-domstolens vurdering, C-536/07 • 62      Likewise, the fact that the main contract may not provide for an option or obligation on the part of the City of Cologne or KölnMesse to repurchase the buildings constructed is irrelevant to the classification of the contract in question (see, to that effect, Auroux, paragraph 47).

  19. EU-domstolens vurdering, C-536/07 • 63      In the light of all the foregoing considerations, it must be concluded that, viewed in the general context of the project at issue, the main contract of 6 August 2004 constitutes a public works contract within the meaning of Article 1(a) of Directive 93/37 which should have been awarded in accordance with the rules of Articles 7(4) and 11 of that directive. The Commission’s action must, therefore, be upheld.

  20. Sammenfatning – blandede kontrakter • Anskaffelsesforskriften kapittel 6 • Problemet: hva er kontraktens hovedelement • Særlig praktisk ved kjøp/leie av fast eiendom • En oppgave – Rødmyrlia 40

  21. Aktivitetskravet - kontraktsbegrepet • Kontrakt forutsetter (minst) to parter – sak C-26/03, Stadt Halle • «Ren» egenregi faller klart nok utenfor regelverket • Kommunen velger å utføre renovasjonstjenestene selv • Direktiv 2014/24 art. 1 nr. 2. • Anskaffelse fra «economic operators» • Definisjonen av «economic operators», 2014/24 art. 2 nr. 10 • Noen som tilbyr varer, utførelse av arbeider eller tjenester i markedet»

  22. Samarbeid i offentlig sektor, anskaffelsesforskriften kap. 3 • Unntak fra loven og anskaffelsesforskriften • Utvidet egenregi – anskf. § 3-1, lov og forskrift gjelder ikke • Tre kumulative vilkår, anskf. § 3-1(1), direktiv 2014/14 art. 12 nr. 1 • Oppdragsgivers kontroll over medkontrahenten • Medkontrahentens kundeportefølje • Eierinteressene i medkontrahenten

  23. Samarbeid, utvidet egenregi • Kontrollkravet • Kontroll som svarer til den oppdragsgiver utøver over sin egen virksomhet • anskf. § 3-1 (2), direktiv 2014/24 art. 12 nr. 1 annet ledd • C-107/98, Teckal, C-84/03, Spania, og C-15/13, Datenlotsen

  24. Kontroll, C-15/13, Datenlotsen • 21      By its questions, which it is appropriate to consider together, the national court asks, in essence, whether Article 1(2)(a) of Directive 2004/18 must be interpreted as meaning that a contract for the supply of products concluded between (i) a university which is a contracting authority and whose purchases of products and services are controlled by a German Federal State, and (ii) an undertaking under private law, owned by the Federation and by Federal States, including the abovementioned Federal State, constitutes a public contract for the purposes of that provision.

  25. Kontroll, C-15/13, Datenlotsen • 22      In accordance with the case-law of the Court, the principal objective of the EU rules in the field of public procurement is the opening-up to undistorted competition in all the Member States with regard to the execution of works, the supply of products or the provision of services; that entails an obligation on all contracting authorities to apply the relevant rules of EU law where the conditions for such application are satisfied (see, to that effect, Case C‑26/03 Stadt Halle and RPL Lochau EU:C:2005:5, paragraph 44).

  26. Kontroll, C-15/13, Datenlotsen • 23      Any exception to the application of that obligation must consequently be interpreted strictly (see Stadt Halle and RPL Lochau EU:C:2005:5, paragraph 46). • 24      The Court concluded that, in view of the application of the procedures for awarding public contracts laid down in Directive 2004/18, it suffices in principle, in accordance with Article 1(a) of that directive, if a contract for pecuniary interest was concluded between, on the one hand, a contracting authority and, on the other, a person legally distinct from that contracting authority (see, to that effect, Teckal EU:C:1999:562, paragraph 50).

  27. Kontroll, C-15/13, Datenlotsen • 25      The exception to the application of that principle, recognised by the Court in relation to in-house awards, is justified by the consideration that a public authority which is a contracting authority has the possibility of performing its public-interest tasks by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments, and that that exception may be extended to situations in which the other contracting party is an entity legally distinct from the contracting authority, where the latter exercises control over the contractor similar to that which it exercises over its own departments and that contractor carries out the essential part of its activities with the contracting authority or authorities which own it (see, to that effect, TeckalEU:C:1999:562, paragraph 50, and Stadt Halle and RPL LochauEU:C:2005:5, paragraphs 48 and 49). In such a situation, the contracting authority can be regarded as employing its own resources.

  28. Kontroll, C-15/13, Datenlotsen • 26      The Court has further clarified the meaning of the term ‘similar control’, stating that the contracting authority must have a power to exercise decisive influence over both the strategic objectives and the significant decisions of the contractor, and that the control exercised by the contracting authority must be genuine, structural and functional (see, to that effect, Joined Cases C‑182/11 and C‑183/11 Econord EU:C:2012:758, paragraph 27 and the case-law cited).

  29. Samarbeid, utvidet egenregi • Felles kontroll • Anskf. § 3-2, 2014/24 art. 12 nr. 3 • C-107/98, Teckal, C-573/07, Sea

  30. Felles kontroll, C-573/07, Sea • Next, the question arises whether, when a public authority becomes a minority shareholder in a company limited by shares with wholly public capital for the purpose of awarding the management of a public service to that company, the control that public authorities which are members of that company exercise over it must, if it is to be classified as similar to the control they exercise over their own departments, be exercised by every one of those authorities individually or whether it may be exercised by them jointly.

  31. Felles kontroll, C-573/07, Sea • 55      The case-law does not require the control exercised over the contracting company in such a case to be individual (see, to that effect, Coditel Brabant, paragraph 46). • 56      In a situation in which several public authorities choose to carry out certain of their public service tasks by having recourse to a company that they own in common, it is usually not possible for one of those authorities, having only a minority holding in that company, to exercise decisive control over the latter’s decisions. In such a case, to require

  32. Felles kontroll, C-573/07, Sea • the control exercised by a public authority to be individual would have the effect of requiring a competitive tendering procedure in most cases in which such an authority seeks to become a member of a company owned by other public authorities for the purpose of awarding to that company the management of a public service (see, to that effect, Coditel Brabant, paragraph 47).

  33. Felles kontroll, C-573/07, Sea • 57      Such a result would not be in keeping with the system of Community rules on public procurement and concession contracts. It is accepted that it is open to a public authority to perform the public interest tasks entrusted to it by relying on its own administrative, technical and other resources, without being obliged to call on outside entities not belonging to its own departments (Stadt Halle and RPL Lochau, paragraph 48; Coditel Brabant, paragraph 48; and Commission v Germany, paragraph 45).

  34. Felles kontroll, C-573/07, Sea • 58      Public authorities may act in cooperation with other public authorities in making use of that opportunity to rely on their own resources in order to perform their public-service tasks (see, to that effect, Case C‑295/05 Asemfo [2007] ECR I‑2999, paragraph 57, and Coditel Brabant, paragraph 49).

  35. Felles kontroll, C-573/07, Sea • 59      It must, therefore, be recognised that when several public authorities own a company to which they entrust the performance of one of their public service tasks, the control which those public authorities exercise over that entity may be exercised by them jointly (see, to that effect, Coditel Brabant, paragraph 50).

  36. Felles kontroll, C-573/07, Sea • 60      With regard to a body that takes its decisions collectively, the procedure used for the taking of those decisions, in particular recourse to a majority decision, is immaterial (see Coditel Brabant, paragraph 51).

  37. Samarbeid, utvidet egenregi • Negativt krav til eierforholdene i leverandøren • Ingen direkte private eierandeler • Anskf. § 3-1 (1) c), 2014/24 art. 12 nr. 1 (c) • Rettspraksis • C-26/03, Stadt Halle

  38. Eierskap, C-26/03, Stadt Halle • 48 A public authority which is a contracting authority has the possibility of performing the tasks conferred on it in the public interest by using its own administrative, technical and other resources, without being obliged to call on outside entities not forming part of its own departments. In such a case, there can be no question of a contract for pecuniary interest concluded with an entity legally distinct from the contracting authority. There is therefore no need to apply the Community rules in the field of public procurement.

  39. Eierskap, C-26/03, Stadt Halle • 49 In accordance with the Court’s case-law, it is not excluded that there may be other circumstances in which a call for tenders is not mandatory, even though the other contracting party is an entity legally distinct from the contracting authority. That is the case where the public authority which is a contracting authority exercises over the separate entity concerned a control which is similar to that which it exercises over its own departments and that entity carries out the essential part of its activities with the controlling public authority or authorities (see, to that effect, Teckal, paragraph 50).

  40. Eierskap, C-26/03 Stadt Halle • It should be noted that, in the case cited, the distinct entity was wholly owned by public authorities. By contrast, the participation, even as a minority, of a private undertaking in the capital of a company in which the contracting authority in question is also a participant excludes in any event the possibility of that contracting authority exercising over that company a control similar to that which it exercises over its own departments.

  41. Eierskap, C-26/03 Stadt Halle • 50 In this respect, it must be observed, first, that the relationship between a public authority which is a contracting authority and its own departments is governed by considerations and requirements proper to the pursuit of objectives in the public interest. Any private capital investment in an undertaking, on the other hand, follows considerations proper to private interests and pursues objectives of a different kind.

  42. Eierskap, C-26/03 Stadt Halle • 51 Second, the award of a public contract to a semi-public company without calling for tenders would interfere with the objective of free and undistorted competition and the principle of equal treatment of the persons concerned, referred to in Directive 92/50, in particular in that such a procedure would offer a private undertaking with a capital presence in that undertaking an advantage over its competitors.

  43. Samarbeid, utvidet egenregi • Krav til medkontrahentens kundeportefølje • Mer enn 80% av aktiviteten må utføres for oppdragsgiver eller rettssubjekter oppdragsgiver kontrollerer • Anskf. § 3-1 (1) b), 2014/24 art. 12 nr. 1 (b) • C-107/98, Teckal, C-340/04, Carbotermo

  44. Kundeportefølje, C-340/04, Carbotermo • 59      The conditions laid down in Teckal for a finding that Directive 93/36 is inapplicable to the contracts concluded between a local authority and a person legally distinct from it, according to which the local authority must exercise over the person in question a control similar to that which it exercises over its own departments and that person must carry out the essential part of its activities with the controlling authority or authorities, are aimed precisely at preventing distortions of competition.

  45. Kundeportefølje, C-340/04, Carbotermo • 60      The requirement that the person in question must carry out the essential part of its activities with the controlling authority or authorities is aimed precisely at ensuring that Directive 93/36 remains applicable in the event that an undertaking controlled by one or more authorities is active in the market and therefore likely to be in competition with other undertakings.

  46. Kundeportefølje, C-340/04, Carbotermo • 61      An undertaking is not necessarily deprived of freedom of action merely because the decisions concerning it are controlled by the controlling authority, if it can still carry out a large part of its economic activities with other operators. • 62      It is still necessary that that undertaking’s services be intended mostly for that authority alone. Within such limits, it appears justified that that undertaking is not subject to the restrictions of Directive 93/36, since they are in place to preserve a state of competition which, in that case, no longer has any raison d’être.

  47. Kundeportefølje, C-340/04, Carbotermo • 63      In applying those principles, the undertaking in question can be viewed as carrying out the essential part of its activities with the controlling authority within the meaning of Teckal only if that undertaking’s activities are devoted principally to that authority and any other activities are only of marginal significance. • 64      In order to determine if that is the case, the competent court must take into account all the facts of the case, both qualitative and quantitative.

  48. Særlig om egenregienheter som naturalkreditor • Anskf. § 3-1 (3) 2014/24 art. 12 nr. 2.

  49. Sammenfatning – utvidet egenregi • «Økonomisk enhet-betraktning» • Gir assosiasjoner til foretaksbegrepet slik vi møter det i konkurranseretten • Men er genuint anskaffelsesrettslig • Kontroll, som over seg selv • Fravær av direkte private eierinteresser • Leverandørens virksomhet må være rettet inn mot de kontrollerende oppdragsgiverne • Bestemmelsen i direktiv og forskrift kodifiserer, og operasjonaliserer, rettspraksis

  50. Samarbeidsavtaler mellom oppdragsgivere • Anskf. §3-3, 2014/24 art. 12 nr. 4

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