Danish regulation of public procurementsDownload PDF version
The Danish regulation of public procurements can mainly be found in three executive orders, each implementing a number of EU Directives.
The Obligation to invite Tenders
State, regional and local authorities are obliged to invite tenders. Accordingly, private entities are generally under no such obligation. However, in some cases, private entities are obliged to follow rules on public procurement, e.g. in cases regarding concessions, a private entity must follow the rules regarding public procurement when dealing with building and construction work, but not when buying goods or services.
Contracts requiring Tender Offers
The answer to the question of whether tenders for a contract must be invited and according to which rules is generally found by looking at the value of the contract in question. If the contract is equal to or exceeds certain thresholds, the rules of the above directives apply. The thresholds vary according to the type of contract and also depend on the authority in question. There is an EU threshold, in which case the tender is governed by the EU rules, and a Danish threshold, in which case the tender is governed by the Danish Act on Tender Procedures for Public Work Contracts. In such cases, more flexible procurement methods are provided by Danish law.
Method of Tender
The three most common methods of tender in Danish law are:
open tender, which is normally used for simple contracts
limited tender, which is normally used in more complex cases
the competitive dialogue, which is normally used in particularly complex cases
In each case the task provider is free to decide whether the result of the tender is to be based on lowest price or the most economically beneficial offer. If the result is to be based on the most economically beneficial offer, the task provider must specify which criteria and qualities that will be taken into account when evaluating the offers.
When evaluating the received offers, it is very important that the task provider follow these criteria and select the best offer on an impartial basis.
If no offers match the criteria or no offers have been received during the tender, the task provider is as a main rule entitled to cancel the tender procedure.
A complaint may be filed with either the Danish Competition Authority or the Complaints Board for Public Procurement (in Danish: “Klagenævnet for Udbud”).
The Danish Competition Authority handles complaints concerning both Danish and foreign procurements. If a contract has already been awarded, the case is usually referred to the Complaints Board for Public Procurement which has a number of remedies at its disposal, including the possibility of awarding compensation.
A complaint may also be brought directly before the courts. However, the procedure of the Complaints Board for Public Procurement is generally faster and less costly, often making it preferable not to bring the case directly before the courts instead of bringing it before the Complaints Board for Public Procurement.
The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis of decisions of considerations.