non-discrimination

Non-discrimination is a fundamental principle in public procurement that prohibits treating suppliers differently based on their nationality. Rooted in the Treaty on the Functioning of the European Union (TFEU), the principle ensures that all economic operators across the EU and EEA have equal access to public contracts.

How does non-discrimination work?

The principle is codified in Article 18(1) of EU Directive 2014/24/EU, which requires contracting authorities to treat economic operators equally and without discrimination. It prohibits both direct and indirect discrimination.

Direct discrimination occurs when a contracting authority openly sets requirements that exclude suppliers from certain countries — for example, requiring registration in a specific member state. Indirect discrimination is more subtle: requirements that appear neutral but in practice favour domestic suppliers, such as demanding specific national certifications when equivalent international ones provide the same assurance.

It is important to distinguish non-discrimination from the broader equal treatment principle. While equal treatment ensures all tenderers face the same procedures and evaluation standards throughout the process, non-discrimination targets specifically nationality-based bias.

Why is non-discrimination important?

The principle has practical implications at every stage of the procurement process:

• Requirements specifications must not favour domestic suppliers
• Qualification requirements must be objective and non-discriminatory
• Award criteria must evaluate all bids against the same standards
• The principle applies to contracts both above and below EEA thresholds, though enforcement mechanisms may differ

In Norway, non-discrimination was traditionally enshrined in the Public Procurement Act (LOA) § 4 alongside principles like equal treatment and proportionality. Recent legislative changes have repealed § 4 for below-threshold procurements, though the principle continues to apply through EEA law for above-threshold contracts. Tools like Cobrief help suppliers discover relevant contract notices across markets — a direct benefit of the open competition that non-discrimination enables.

Non-discrimination is a cornerstone of public tender regulation. By preventing nationality-based barriers, it ensures genuine competition and the efficient use of public funds across the single market.