These instructions are meant primarily for situations in which a party wishes to have the Finnish Competition and Consumer Authority (hereinafter FCCA) investigate compliance with procedures related to public procurement legislation, as stated in chapter 15 of the Act on Public Procurement and Concession Contracts (1397/2016) (hereinafter the Act). These guidelines have been written to facilitate the processing of requests for action and to identify the information needs relating to investigating unlawful procedures.
Requests for action are an important source of information for the Finnish Competition and Consumer Authority in order to identify unlawful procedures and supervise compliance with the law.
Supervision primarily seeks to intervene in direct award carried out in blatant negligence of legal provisions and left completely unreported, as well as in other significant procurement corresponding to direct award carried out in a grossly faulty or discriminatory manner.
However, the FCCA’s resources are limited. This is why the FCCA places requests into order of importance and focuses on cases in breach of the Act which may have a major impact on effective use of public funds, openness of markets, and competition. The FCCA may refrain from taking action not only because of information brought into its attention on the importance of factors regarding the effects on procurement procedure but also when it cannot be considered likely that the procurement involves unlawful direct award or other procedure in breach of the Act or the matters brought to the attention of the Authority do not seem truthful, or when the contracting authority, during the Authority’s investigation, gives up direct award or otherwise arranges the procurement by arranging competitive tendering as specified in the Act.
A request for action may be submitted to the FCCA by anyone who feels that a contracting authority has failed to comply with the procurement legislation. A request for action may be submitted even if the party submitting it had access to regular means of appeal. However, the FCCA’s immediate duty is not to protect individual suppliers in procurement procedures. Making a request for action does not affect the party’s options for exercising its regular means of appeal or for making an administrative complaint to some other authority. On the other hand, filing a regular appeal may have an effect on the processing of the request for action by the FCCA and any consequences as specified in chapter 15 of the Act.
According to section 139, subsection 2 of the Act, requests for action are processed as governed by the provisions of Chapter 8 a of the Administrative Procedure Act (434/2003). Therefore a request for action should be made in writing, although no formal requirements exist. The Finnish Competition and Consumer Authority ensures that the matter will be processed, but the party making the request for action should present its view on what grounds the procedure is incorrect and, if possible, provide information about the time when such a procedure or neglect took place. The party making the request for action should also cooperate in the examination of the matter which it has filed (Administrative Procedure Act, sections 31 and 53 a). A request for action should (if possible) contain at least the following information:
1. Information about the object for which action has been requested
1.1. Contact information of contracting authority for which action has been requested
1.2. Information about the procurement for which action has been requested (such as publication date of contract notice, type of procurement type, value of procurement) and documents related to the procurement (such as contract notice, invitation to tenders, tender, procurement decision, procurement agreement or any other document containing the facts that are necessary to investigate the matter).
2. Viewpoint on the legality of the procurement procedure, and grounds for this
2.1. Reasoned view/opinion for suspicion of unlawful procurement procedure.
2.2. Description and details about the market situation concerning the subject matter of procurement.
2.3. Information about any prior procurement procedures by the contracting authority relating to the subject matter for which action has been requested, and procurement decisions related to them.
3. Other significant views
3.1. Other matters to take into account regarding the procurement procedure for which action has been requested, and any related documents.
3.2. Information on whether the matter will be or has already be processed by some other authority or court of law.
Requests for action are as a rule public, under the Act on the Openness of Government Activities, (621/1999). Authorities must inform anyone, upon request, about any request for action and documents related to it. On the other hand, the Act on the Openness of Government Activities also prescribes confidentiality obligations on the basis of which business secrets, for example, and certain other information specified in the Act on the Openness of Government Activities may not be disclosed. This is why requests for action should clearly list any business secrets and other confidential information.
The identity of the person filing the request for action is, as a rule, public information. Identity can only be hidden for a specific reason, such as very important public or private interest. Requests for action should be mailed to: Finnish Competition and Consumer Authority, Registry, P.O.B 5 FI-00531 Helsinki, Finland or emailed to email@example.com and firstname.lastname@example.org.
The Finnish Competition and Consumer Authority is also interested in confidential and informal tips even if the person providing the tip is not in possession of all the facts above. Based on such tips, the FCCA may also initiate an investigation on its own initiative as stated in section 139, subsection 3 of the Act on Public Procurement and Concession Contracts. You can also send a tip to the FCCA anonymously using the link below.