The Market Court repealed the Finnish Tax Administration’s procurement of printing and distribution services – Merilampi represented Posti Messaging Oy

At the end of 2018, the Finnish Tax Administration invited tenders for the procurement of high-volume printing, enveloping and distribution services and some related services. The procurement contract was to be concluded for an indefinite term, and the estimated value of the contract was EUR 9-16 million per year. The Tax Administration excluded Posti Messaging’s tender from the tender procedure for being contrary to the invitation to tender and chose Post Messaging’s competitor as the service provider. Posti Messaging appealed against the decisions to the Market Court, claiming that the Tax Administration’s invitation to tender was unlawful.

By its decision of 23 January 2020 (MAO:13/20), the Market Court repealed the decisions of the Tax Administration. The Court deemed that the Tax Administration’s claim according to which the mandatory requirements of the invitation to tender were not, in every respect, even meant to concern the distribution services and the providers of said service could not be clearly inferred from tender documents. In addition, according to the Court, some of the mandatory requirements of the invitation to tender concerning the provision of distribution services had been severe, which was supported by the fact that the only company providing such services nation-wide in Finland (Posti Oy) had stated that it would not be able to meet those requirements. The declaration by the Tax Authority, made for the first time before the Market Court, that certain terms were not even intended to apply to the distribution services supported the fact that those terms were not suitable for distribution services. The use of these severe and unsuitable terms for all services had not allowed tenderers a fair and non-discriminatory opportunity to participate in the tender procedure.

The Market Court considered that the invitation to tender had been unclear and, taken as a whole, had not sufficiently safeguarded the equal opportunity of the tenderers to offer their services, but instead served the effect of limiting the utilization of existing opportunities for competition. The Tax Administration had acted in contravention of the law on public procurement. Merilampi represented Posti Messaging in the matter. The Market Court ruling is not yet final.

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