This is an opinion article and the author is solely responsible for the views expressed in the text.
Entrepreneur Sebastian Merlöv has written an engaging opinion article about Battle Week, launched by the Swedish Defence Materiel Administration (FMV). The project manager for Battle Week, Jonas Linde, subsequently published a reply to Merlöv's article.
It should be noted at the outset that it is refreshing and commendable that Linde engages in the debate and takes the time to explain the considerations that have been made.
FMV, and other defence authorities, have taken several different initiatives and made significant strides to accelerate the shift in pace within defence materiel procurement that must occur. The Innovation Challenge, introduced through support package 19, is one such example, and Battle Week is another.
The legal framework to which the authorities must adhere sets certain outer limits on what is permitted. These outer limits can sometimes be perceived by authorities as narrower than they actually are.
As it is to be understood, Linde argues that the fee itself is necessary in order to prevent participating companies from being disqualified in a future procurement process, or from that process becoming mired in a protracted review procedure.
There is sometimes a misconception that engaging in the preparatory phase of an upcoming procurement constitutes a barrier to participating in that procurement. The matter has been examined on numerous occasions by the country's various administrative courts of appeal, and the answer is unequivocal: no such absolute legal barrier exists.
As an example, the Administrative Court of Appeal in Sundsvall (northern Sweden), in case no. 2540-23, found that a demonstrated information advantage gained through participation in the preparatory phase was not in itself sufficient to disqualify a tender. The court held that it is required that the tenderer has had such a competitive advantage that competition is distorted in a manner that cannot be remedied.
What the above means in practice is that an information advantage in itself need not be of any consequence, provided that the procurement is designed in a correct manner.
The assertion that the fee serves as protection against a review process is, moreover, a rather weak argument, since a review process can be initiated on virtually any grounds.
I have no reason to believe otherwise than that FMV genuinely holds the conviction set out in Linde's reply. On this point, FMV should reconsider.
Markus Garfvé is a lawyer and managing partner responsible for Fylgia's public affairs practice group.
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