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Public Procurement Damages

Why should a public authority or entity who has acted in breach of statutory rules on procurement be held liable for damages towards a tenderer? That is the question of departure for this dissertation. For centuries, Swedish law has regulated public procurement in different ways. However, the possibility for a tenderer to seek damages from the public authority or entity through a court action is a much more modern phenomenon within the Swedish legal order. In the dissertation I seek to describe how different legal arguments and traditions from different fields and orders of law have contributed both to impede and strengthen the availability of damages due to breach of procurement regulation.

Using tort law theory as a stepping stone, the dissertation contains a detailed analysis of how questions of liability, causation and estimation of damages are to be adjudicated, when a tenderer files a claim for damages due to a breach of public procurement rules. The particularities of this form of action for damages are illuminated, as well as its heritance from general tort law, but also other fields of law such as public and contract law. I also show how the remedy of damages is affected by other remedies in the field of public procurement.

Throughout the dissertation I analyze what role the relationship between EU law and national law plays when it comes to damages due to breach of rules on procurement. It is suggested that EU law, by taking an interest in the way the Member States regulate public procurement, not only has influenced the development of new national legislation on public procurement damages, but also brings methodological consequences for the national court’s adjudication of a damages claim. An important aspect of this theme is how arguments of effectiveness – particularly in terms of effective remedies for individual tenderers – have been used by legislators and courts both at EU level and national level to shape this particular form of damages. Given that the EU norms on public procurement damages must be used and further developed on the national level, I study how the Swedish legislator and Supreme Court within the procedural autonomy of the Member States have used their power to regulate public procurement damages. The study shows how especially the Supreme Court’s interpretation of EU law to a considerable extent has led to national rules on public procurement damages that aim to facilitate the individual tenderer’s action for damages.