Svensk försvarsupphandling 2024 UrT 2024 nr 1 s. 73
A Primer on U.S. Defense Procurement UrT 2024 no 2 p. 87
In Finland, procurement in the field of defence and security is regulated through the Act on Public Procurement in the Fields of Defence and Security (Fi. Laki julkisista puolustus- ja turvallisuushankinnoista, 1531/2011, as amended) (the Finnish Act), which came into force on 1 January 2012. The Finnish Act implements the Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (the DSD).
The Finnish Act applies to defense and security procurement that concern
1. defense materiel and goods that are intended for security purposes, including those for which security-classified documents are issued, drawn up, or otherwise processed, as well as their parts or subassemblies,
2. construction contracts, goods or services that are directly related to any phase of the life cycle of the goods mentioned in point 1 above, and
3. construction contracts or services used especially for military purposes and intended for security purposes, for which security-classified documents are issued, drawn up or otherwise processed.
In terms of flexibility granted in the DSD to the Member States for implementation it can be mentioned, as an example, that Finland has included a clause in the Finnish Act on subcontracting. This clause allows a contracting authority or entity to require a successful tenderer to subcontract a share of the contract to third parties (the maximum percentage of subcontracting may not exceed 30% of the value of the contract). Additionally, the contracting authority may decide to apply the Act on Public Procurement and Concession Contracts (Fi. Laki julkisista hankinnoista ja käyttöoikeussopimuksista, 1397/2016, as amended) (the Finnish Classical Act) instead of the Finnish Act in the procurement of goods, services or construction contracts that fall within the scope of the Finnish Act.
The Finnish Act also covers defence and security procurement when the estimated value of the contract is below the EU threshold value i.e. in case the estimated value is over the national threshold value. For supply and so-called A-services contracts, the national threshold value is EUR 100,000 and for works contracts, it is EUR 500,000. These national procurements are regulated less strictly than those exceeding the EU threshold. For these cases, the national procedure provisions outlined in Chapter III of the Finnish Act will be applied.
Exclusions
The following procurement is excluded from both the Finnish Act and the Finnish Classical Act:
- If the procurement of a construction contract, goods or service falls within the scope of the Finnish Act only partially, but to which the Finnish Classical Act or the Procurement Act for Special Sectors would not apply at all, and the procurement can only be made with a single contract;
- defense and security procurement, which must be kept secret or where the application of the Finnish Act would oblige the contracting authority to provide information, the disclosure of which is against the central security interests of the state;
- defense and security procurement between authorities;
- for defense and security procurement, which concern:
a) special procedural rules according to an international agreement or arrangement between Finland and at least one country outside the EEA;
b) special rules of procedure under an international agreement or arrangement regarding the deployment of forces;
c) the international organization’s special rules of procedure when the international organization makes procurements for its own purposes; or
d) the special rules of procedure of the international organization, when the contracting authority shall carry out the procurement in accordance with those rules; - defense and security procurement related to the joint research and development project of at least two countries of the EEA concerning a new product, and not to procurement made in the later stages of this product’s life cycle;
- for procurement, which is carried out when troops are sent outside the EEA, when the procurement must be made with a supplier that operates in the area in question due to operational needs.
Procurements subject to Article 346(1)(b) TFEU (Treaty on the Functioning of the European Union) are covered by the Finnish Act and subject to the national procedure provisions provided it exceeds the above-mentioned national threshold value. However, there is no obligation to publish a notice for the procurement if it meets the conditions of Article 346(1)(b) TFEU. If the procurement of a construction contract, goods or service falls within the scope of the Finnish Act, but at the same time only part of the procurement meets the requirements set out in Article 346(1)(b) TFEU, and the procurement can only be done with a single contract, the national procedure is to be applied as well.
There are several provisions on so called mixed contracts both in the Finnish Act and the Finnish Classical Act which shall be considered in respect of selection of procedure for security and defence procurement.
Differences compared to the Finnish Classical Act
Differences of the Finnish Act compared to the Finnish Classical Act, which implements the Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, comprise i.a. the fact that there is no open procedure, but a limited, negotiation procedure or a competitive negotiation procedure. The durations of frame agreements may be longer (seven years compared to four years). The request for a tender does not need to be published when the contract notice is published but later in the procedure to the selected tenderers. The direct award criteria for procurement exceeding the EU threshold differ somewhat from the criteria of the Finnish Classical Act, and according to the Finnish Act procurement exceeding national threshold (which is higher than in the Finnish Classical Act), the contracting authority can request an offer directly from one supplier if the tender cannot be organized for justified reasons related to national defense, state security or security of supply, along with other criteria mentioned in the Act. Requirements on information security and security of supply may also be set for tenderers. Neither the Finnish Act nor the DSD include express provisions on changes to the procurement contract.
Tuija Kaijalainen
PDF: Defence and Security Procurement in Finland UrT 2024 no 2 p. 49
Volym: 2
Sida: 49
År: 2024