Public procurement – ​​qualification requirements

The procurement rules allow for qualification requirements to be met with a declaration of commitment from a third party who meets the requirements. In a ruling from Asker and Bærum District Court of 8 June 2026, the court held that the procurement regulations do not allow for this where qualification requirements for authorisations etc. fall within the scope of the procurement regulations, section 16-2. After a specific assessment, the district court also concluded that the relevant qualification requirement had to be classified under section 16-2 of the procurement regulations and that the contracting authority was therefore precluded from relying on a declaration of commitment from a third party in the case in question. The underlying case concerned a claim by Asker Taxi for a temporary injunction in a dispute with Asker and Bærum Municipality. Asker Taxi was fully successful and was assisted by Rasmussen and Broch.  

Background

Asker Taxisentral AS (Asker Taxi) participated in a competition for the provision of taxi services to Asker Municipality. The competition criteria stated that the tenderer should have a license as a taxi central (Professional Transport Act Section 9 c). Fulfillment of the requirement was to be documented by presenting the license document. Asker Taxi approached the municipality with the question of whether it was sufficient to present the parent company's license. The municipality unequivocally replied that this was sufficient. On this basis, Asker Taxi presented the license to the parent company. This was accepted and Asker Taxi was also awarded the contract. Another supplier complained about the award and claimed that Asker Taxi did not meet the qualification requirement for a central license. Asker Municipality upheld the complaint and reversed the award in favor of the complainant. Asker Taxi then requested a temporary injunction to stop the award. One of the questions in the case was whether the regulations at all allow for the qualification requirements described in Section 16-2 of the Procurement Regulations to be fulfilled through an obligation from a third party, or whether the municipality relied on an incorrect understanding of the regulations when it assumed that Asker taxi could fulfill the qualification requirement by presenting the central license to the parent company (there was no disagreement that the parent company and Asker taxi had to be treated as two different legal entities in this context).  

The court's assessments

The court points out that the wording of the procurement regulations, section 16-10, states that a supplier may rely on other activities to meet qualification requirements related to i) economic and financial capacity, or ii) technical and professional qualifications. The court assumed that the wording of the procurement regulations, section 16-10, must be understood as an exhaustive regulation, and that it is therefore not permissible for a supplier to rely on other activities to meet qualification requirements related to registration and authorizations (which are not specifically mentioned in the wording of section 16-10). The court pointed out that such an understanding has also been assumed by the Complaints Board for Public Procurement in case 2022/549 with further reference to the procurement directive for the classical sector, article 63. There is consequently a fundamental distinction between qualification requirements that relate to economic capacity and professional qualifications and, on the other hand, qualification requirements that relate to registrations and authorizations.  

The court then decided whether the relevant qualification requirement fell under the Procurement Regulations Section 16-2 (registrations or authorizations), or whether it had to be considered as a requirement for technical or professional qualifications, see Section 16-4. If the requirement had to be considered as a requirement for registrations or authorizations in Section 16-2, Asker Municipality had in practice allowed a solution that was contrary to the prescriptive requirements of the regulations. If the requirement had to be considered as a requirement for professional qualifications in Section 16-4, Asker Municipality had acted within the framework of the regulations. 

The court pointed out that Section 16-6 of the Procurement Regulations exhaustively states which documentation requirements the contracting authority may set out in connection with requirements for technical and professional qualifications. The court then considered whether a central permit as described in Section 9 of the Occupational Transport Act could fall under any of the permitted categories set out in Section 16-6 for legal documentation, in particular letter d (which includes, among other things, "the supplier's quality assurance measures"). The court found that this was not the case, and on this basis concluded that the qualification requirement in question had to be considered a requirement falling under Section 16-2.

The court then concluded that Asker Municipality had relied on an incorrect understanding of the procurement regulations when it declared that the qualification requirement could be met by presenting the parent company's central license.

Finally, the court considered the consequences of the municipality's incorrect understanding of the regulations. The court assumed that Asker Taxi would most likely have applied for, and been granted, its own central license before the deadline for submission of tenders if the municipality had correctly responded that its own central license was required. The court emphasized that Asker Taxi, following the competition, had applied for and been granted its own central license within a period of 16 calendar days. When the company received in response during the competition that the parent company's central license was sufficient as documentation, there were still 30 days left in the tender period. The district court therefore found it likely that the rejection would not have taken place if the municipality had correctly informed it that its own license was required. The municipality's incorrect response had had consequences for the participation and the outcome of the competition, with the consequence that a main claim had been made probable. The municipality accepted that there was a security reason and that the conditions for an injunction were therefore met.

Notes

Both clients and suppliers must be aware that it is not possible to fulfil qualification requirements through declarations of commitment where the qualification requirement concerns authorisations and registrations, etc. In most cases, it will probably be reasonably intuitive that one cannot rely on another legal entity's authorisations or permits to qualify, but where close partners are involved (for example, parent and subsidiary companies), it can still be easy to make mistakes. The issue has also been relevant in other KOFA cases without it appearing to be addressed by the parties as a possible error in the qualification assessment, see for example KOFA 2021/592.

It is also not necessarily obvious in each case how a qualification requirement should be classified under the various categories in the Procurement Regulations, Sections 16-2, 16-3 and 16-4. In this context, it is also important to note that the contracting authority's own classification of a qualification requirement may be decisive (see, among others, KOFA 2022/549).

The decision has a transfer value to the Supply Regulations Section 12-5 (EEA procurement) which is similarly limited to determining that the declaration of commitment can be used to meet requirements for financial capacity and professional qualifications (not registrations and authorizations). For procurements below the thresholds in the classical sector, the legal source picture is somewhat more unclear, but, in our view, the most obvious thing to be based on is a similar limitation here as well.

The ruling is available here .

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