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The Danish Public Procurement Act

Logo LEAD Advokatpartnerselskab
11. December 2015

The first Danish Public Procurement Act has been adopted on 19 November 2015 and will come into force on 1 January 2016. The aim is to create more clear, simple and flexible procedures. The Act implements the new EU Directive on Public Procurement in Danish law and corresponds to the wording of the directive, where the directive is clear. Where the wording of the Directive is less clear, the Act shall  clarify these rules in a Danish context. Furthermore, the Act also includes some special provisions that are not based on the Directive.

The Act will apply to all public tender that will be published after 1 January 2016.  However, some of the new rules (mandatory exclusion grounds and changes to contracts) will also apply to contracts awarded according to the former procurement rules prior to 1 January 2016.

New possibilities and new challenges 

Below you will find a description of some changes to the existing procurement rules that you should be aware of:

Flexible procedures
There will be a wider access to use a negotiated tender procedure or a competitive dialogue. In all cases in which the contracting entity is not procuring standard “off-the-shelf” items, the negotiation procedure may be used.

Earlier access to procurement documents
The contracting entity must allow complete electronic access to all procurement documents as from the date of publishing the contract notice. This also applies to the restricted procedures (prequalification).

Duty to describe evaluation method in procurement documents
The contracting entity must describe the evaluation method in the procurement documents.  This means that the contracting entity must have prepared an evaluation at the publishing of the contract. This is a pure Danish regulation. If such evaluation method has been published, the complaint board or other courts cannot set this method aside, provided that the method is in compliance with the general principles of equal treatment and transparency.

Use of European Single Procurement Document
The ESPD (European Single Procurement Document) will be introduced. As the document has not been adopted in the EU bodies, the Danish Competition Authority expects to use a pdf-version of the document until the ESPD comes into force. Tenderer thus will have to fill out a paper version of the document until the electronic version is accessible.

Introduction of a new light regime
As the distinction between services classified under Appendix IIa and IIb is abolished with the new Act, more contracts will have to be put out to tender. The procedure used for these services is called the light regime including a number of general procedural requirements to ensure equal treatment and transparency.

Termination of contracts
In addition, a new Danish feature is the obligation of a contracting entity to terminate a contract with appropriate notice, if the decision to award was revoked by final settlement or judgment.

 

All in all the new Act brings some simplification and clarification, but it also contains some uncertainties that will have to be clarified by case law from the Danish Complaint Board.

For any further inquiries or questions to the new Procurement rules you are welcome to contact attorney-at-law Alexandra Huber, LEAD advokatpartnerselskab, ah@leaddenmark.com  



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