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The Act on Public Contracts provides that the contracting
authority is obliged to take into consideration facts which
actually affect the price of the tender, including a financial aid
given by the contracting authority itself to the tenderer. We
represented a complainant in a public procurement dispute which
concerned the taking into consideration of state aid in the
comparison of tenders. Our complaint succeeded in the Market Court
and in the Supreme Administrative Court which gave its decision on
11 June 2012 (docket no. 1533). With regard to the comparison of
tenders, the contracting authority had not properly taken into
consideration the financial aid it had granted to the tenderer.
Attorneys at Law Borenius Ltd has developed, in cooperation with
Audit Corporation Ernst & Young, a simple model on how public
aid can be taken into consideration so that similar procurement
disputes can be avoided. The model is well established and used for
a couple of years in public procurement procedures of one of the
biggest contracting authorities in the field of social and welfare
sector in Finland.
Our model takes into consideration the proportion of aid
directed to the object of public procurement in cases where aid has
been utilized also to other purposes than the procured service in
question. For example, the model has been applied in social and
welfare procurement in which the amount of aid has been
proportioned in relation to the treatment or rehabilitation days.
The model applies well for other types of service procurement as
well.
The precondition for applying the model is that the quantity
used as the basis of the model will also be used as the basis for
comparison in procurement. For example in rehabilitation tenders,
which are based on per-day pricing, an additional price calculated
on the basis of the model will be added to the tender price. The
additional price will be calculated by dividing the total amount of
aid by its write-off period (which is, for example, 20 years with
regard to fundamental improvement aid). The received amount of aid
related to a one-year period will be further divided by the number
of total treatment days provided in the real estate by the service
provider. The amount of total treatment days is based on
tenderer's supply of service (for example, accommodation and
health care days carried out in the real estate in addition to
rehabilitation days). In practice, the calculation in accordance
with the model should be executed as follows:
The fundamental improvement aid of EUR 1,000,000 will be divided
by 20 write-off years (1,000,000/20 = EUR 50,000 per year), which
should be divided by the number of total treatment days of 25,000
(50,000/25000 = EUR 2,00). The received sum of EUR 2,00 should be
added to the price of the offered rehabilitation day in order to
take financial aid into consideration.
We recommend that contracting authorities specify in their
invitations to tender how public aid is taken into
consideration.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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