Krav om anbudskonkurranse for leie av fiskefartøy til overvåkning av fiskefelt

27 Apr 2012

En fersk avgjørelse i KOFA (Klagenemnda for offentlige anskaffelser) slår fast at det ikke er nødvendig for Fiskeridirektoratet å gjennomføre anbudskonkurranse etter de strenge reglene i forskrift om offentlige anskaffelser […]

En fersk avgjørelse i KOFA (Klagenemnda for offentlige anskaffelser) slår fast at det ikke er nødvendig for Fiskeridirektoratet å gjennomføre anbudskonkurranse etter de strenge reglene i forskrift om offentlige anskaffelser før de leier fiskefartøy for overvåkning av fiskefelt. KOFAs vurdering er oppsiktsvekkende både fordi den har en tvilsom juridisk begrunnelse, og fordi KOFA i avgjørelsen ikke er opptatt av å sikre de viktige hensynene de er satt til å ivareta.

 

 

Reglene om anbudskonkurranser i forbindelse med offentlige anskaffelser er svært strenge i Norge. En hovedårsak er at gode anbudskonkurranser utgjør en effektiv sikkerhet mot korrupsjon og uregelmessigheter ved at det offentlige følger regler som sikrer en rettferdig og saklig konkurranse mellom de som tilbyr varer og tjenester til det offentlige.  Regelverket er så strengt at det offentlige risikerer store bøter dersom de ikke følger regelverket. Dette er det eneste området der myndigheter kan få straffegebyr for brudd på offentlige saksbehandlingsregler – noe som klart viser hvor viktig lovgiver mener at dette regelverket er.

Den aktuelle saken dreier seg altså om Fiskeridirektoratets leie av fiskefartøyer til forskningsfangst i forbindelse med overvåkning av fiskefelt. (Avgjørelsen finnes på www.kofa.no). Ordningen har siden årtusenskiftet vært slik at leien blir oppgjort ved at fartøyet blir tildelt forskningskvoter som kommer i tillegg til fartøyenes ordinære kvoter. Det er altså et forretningsmessig avtaleforhold der fartøyene yter en tjeneste bestående av at fartøy, mannskap og utstyr stilles til disposisjon og at fartøyet fisker på angitt sted og etter anvisning fra direktoratet. Del av tjenesten er også at de gir opphold og sikrer gode arbeidsforhold om bord for direktoratets inspektører.

Det har vært gjennomført en slags konkurranse mellom fartøyene om denne tjenesten. Den har vært utlyst i fiskeripressen og man har fått tilbud. Det har imidlertid vært en rekke brudd på regelverket ved gjennomføringen av konkurransen, blant annet har kriteriene for utvelgelse av vinneren i konkurransen vært svært uklare. Konsekvensen av det er at fartøyene ikke vet hva de bør tilby og hvordan utvelgelsen av vinneren vil skje. I saken for KOFA ble det påpekt en rekke grunnleggende feil i forhold til regelverket. For ordens skyld bør jeg her gjøre oppmerksom på at det var advokatfirmaet jeg arbeider i som førte saken for KOFA.

KOFA løser saken ved å bruke en unntaksbestemmelse i regelverket som slår fast at forskrift om offentlige anskaffelser ikke gjelder for såkalte ”tjenestekonsesjoner” (forskrift om offentlige anskaffelser § 1-3 (2) j).  En tjenestekonsesjon er en avtale der det offentlige tildeler et privat selskap retten til å drive en næring for egen regning og risiko – for eksempel retten til å drive et parkeringshus eller en bussrute.  KOFA mener avtalen mellom Fiskeridirektoratet og fiskefartøyene er en slik tjenestekonsesjon, og at de strenge reglene om anbudskonkurranser derfor ikke gjelder. Denne avtalen er imidlertid åpenbart ikke noen tjenestekonsesjon – det er en avtale som har noen likhetspunkter. For å komme til at det er en tjenestekonsesjon foretar KOFA en regeltolkning som innebærer at begrepet tjenestekonsesjon utvides i forhold til ordlyden i regelverket. En tjenestekonsesjonskontrakt forutsetter at vederlaget for tjenesten som skal utføres utelukkende består i retten til å utnytte tjenesten.

Det oppsiktsvekkende ved dette er at KOFA bruker en slik utvidende tolkning for å unngå å kritisere Fiskeridirektoratets uholdbare anbudskonkurranse. Fiskeridirektoratet fortjener kritikk for gjennomføringen av denne konkurransen fordi den ikke holdt de kvalitative minstemål som må til for at slike konkurranser skal være rettferdige. KOFA burde være mer opptatt av å påpeke det, enn å formulere finurlige regeltolkninger for å presse avtalen mellom Fiskeridirektoratet og fiskefartøyene inn under begrepet ”tjenestekonsesjon”.

Fiskeridirektoratet bør uansett merke seg den kritikken som har fremkommet i denne saken og sikre at disse konkurransene for fremtiden foregår på en åpen og rettferdig måte.

Om forfatteren

Halfdan Mellbye
Halfdan Mellbye Halfdan Mellbye har i 25 år arbeidet med ulike juridiske problemstillinger innenfor fiskeri- og havbruksnæringen. Han har blant annet arbeidet svært mye med næringsreguleringsspørmål og han har i tillegg særlig gode kunnskaper om de biologiske og miljømessige utfordringene for næringsutøverne. Han har i en årrekke vært faglig ansvarlig for faget Havbruksjus ved Universitetet i Bergen. Han har nylig utgitt boken "Rettslig regulering av norsk akvakultur" som er utgitt på Universitetsforlaget 2018. Halfdan har møterett for Høyesterett.

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