Kilpailuolosuhteiden huomioiminen julkisen hankinnan sisältöä ja vaatimuksia määriteltäessä
Avainsanat:
markkinaoikeus, julkiset hankinnat, korkein hallinto-oikeus, suhteellisuusperiaate, tarjouspyyntö, suorahankintaAbstrakti
Role of conditions of competition in defining content and requirements in public procurement
According to public procurement legislation and case-law, contracting authorities have an extensive right to define the target and the requirements of procurement. Nevertheless, contracting authorities must abide with certain limitations to this right. According to public procurement legislation, technical specifications must not have the effect of creating unjustified obstacles to competitive tendering. The purpose of the article is to analyse the limitations to contracting authorities’ right to define the content and requirements in procurement, especially in the case-law of the Market Court (markkinaoikeus). In the Market Court’s case-law, the number of received tenders has been taken into account in the assessment of whether there are unjustified obstacles to competitive tendering. This, however, seems problematic, as there is no clear basis for such consideration in public procurement legislation. The author suggests that the assessment of whether there are unjustified obstacles to competitive tendering or whether the contracting authority has overstepped its right to define the target of the procurement should be based more comprehensively on the principle of proportionality. The article also compares this issue with the contracting authority’s right to award a public contract without a tendering process for technical reasons.
