ERP system VLFK

Vestland Fylkeskommune ('VLFK') announced a contest for the procurement of an ERP system that would cover accounting, budgeting, HR, payroll, and a procurements and eCommerce system. The procurement documents included a requirement that the ERP system was to be delivered in two phases: i) HR/payroll was to be delivered on 1 April 2023, and ii) finance (accounting, budgeting, and procurements/eCommerce) was to be delivered on 1 January 2024.

The procurement was made as a negotiated procedure (https://doffin.no/Notice/Details/2021-357209). During the negotiations, VLFK was made aware that it could be advantageous to change the implementation order, so that phase 2 (accounting, budgeting, and procurements/eCommerce) was delivered before phase 1 (HR/payroll). The change will have limited financial significance for the contract, and will not change the general character of the contract. The contest is still ongoing, and VLFK estimates that an award of contract will be made in June 2022.

Procurement of an ERP system that will include accounting, budgeting, HR, payroll, and a procurements and eCommerce system.

None of the above alternatives are suitable as a justification for the choice of procedure. The type of procedure is a change of the contract in accordance with the PPR, section 23-7 (2) and (3), cf. section 14-2 (4).

The public procurement regulations ('PPR') section 14-2 (1) states that the contracting authority can - before the tender deadline expires - make changes to the tender documentation that are not significant. The PPR sections 23-7 (3) and 23-9 (2) and (3) apply for changes made to the tender documentation after the tender deadline has expired due to negotiations. The public procurement regulations do not include any explicit provision that prohibits the contracting authority from making significant changes to the tender documentation after the tender deadline. Consideration to equality and predictability in the Public Procurement Act, section 4, states, however, that the tender documentation cannot be significantly changed.

When assessing what is a significant change to the tender documentation, it is relevant to look at the rules on the contracting authority's access to make changes in signed contracts in the public procurement regulations, chapter 28. The ban on making significant changes in contracts also applies to changes in the procurement documentation that are done before the contract is signed, and such changes can also represent illegal changes after a contract has been signed, see the KOFA case 2017/172 with further referrals.

The Public Procurement Regulations, section 28-1 (1) letter f states that the contracting authority can make changes in a contract without holding a new contest when the change, independent of value, is not significant, cf. the PPR section 28-2. VLFK believes that a change to the implementation order does not constitute a significant change in accordance with the Public Procurement Regulations, section 28-2. The change will not lead to the nature or scope of the procurement being changed, and the tenderer must still provide the same type of services under the contract. In particular, it is noted that the content in the contract is not ‘significantly different from the original contract’, cf. the PPR section 28-2. VLFK further believes that there is not reason to expect i) that other actors would have been interested in participating in the contest if the change had been made in the published procurement documentation, or ii) that the change would have lead to VLFK awarding the contract to another tenderer, cf. the PPR section 28-2. Furthermore, the change will not change the economic balance of the contract to the tenderer's advantage, cf. the PPR section 28-2.

VLFK therefore believes that the change can be made without holding a new contest.

Procurement of an ERP system.

The contest is still ongoing, so it is not yet clear which tenderer will be awarded the contract. No information is therefore given on the award of contract in part V.

The contract can be signed 10 days after the date of the notice.