PUBLIC PROCUREMENT - Lexnet

Note on The Danish System http://simap.eu.int/DA/pub/src/d005.html
A complaint is submitted to the Complaints Board for hearing of the case at a charge of
DKK 4,000 (correspondig to around ECU 500)
In practice, the Complaints Board will deal with the case in much the same way as a court of
law would do. Invariably, the first step is the exchange of pleadings. Notwithstanding, as a
starting point, the statutory rule of the exchange of pleadings taking place in writing, cases
are often heard by oral procedure. The procedures are based on the right of confrontation
and cross-examination. According to the general principles of administrative law in
Denmark, all the documents of the case are open for public inspection, however, except
documents containing the business secrets of tenderers. The decisions of the Complaints
Board take the form of so-called orders formulated in the same way as judgments in civil
cases dealt with by the ordinary courts.
It takes on average a period of four months for the Complaints Board to decide on a
complaint brought before it.
(d) Possible Reactions
According to the Danish legislation implementing the two Remedies Directives, the power
of the Complaints Board are the following: the Board can either rejct a case, e.g. if it falls
outside its competence, or go into the merits of it, in part or in whole. In the latter case, the
Board can 1) annul unlawful decisions, 2) impose interim measures, in which case the
contract award procedures will be suspended, or 3) impose upon the contracting
authority/entity to comply with the rules (legalise its actions). However, the Complaints
Board does not have the power to repudiate a contract that has been concluded
In only very few cases the Complaints Board has exercised its powers to suspend a
procurement procedure while the case is sub judice, thereby affecting the outcome of the
procedures by its intervention.
(e) Sanctions
If anybody should refuse to give the Complaints Board the necessary information for
consideration of the case, the Complaints Board may impose a fine on the persons or
contracting authorities/entities in question to force them to supply the information.
In cases where a claimant succeeds in his claim before the Complaints Board, the
Complaints Board may order the contracting entity to pay the costs to the claimant in
connection with the claim. The defendant contracting authority/entity, however, will not
have its costs covered, even if the claim is dismissed. The Complaints Board has awarded
costs of up to DKK 300,000/nearly ECU 40,000 (the case was about a building contract for
about DKK 90 million/nearly ECU 10 million).
Contracting authorities/entities are liable to punishment if the procurement rules are
violated. Moreover, failure on their part to comply with a prohibition or enforcement notice,
wilfully or by gross negligence, issued by the Complaints Board is punishable by a fine. For
criminal sanctions to be initiated the contracting entity must be notified to the prosecution
service. Criminal proceedings have never been instituted by the procesecution against a
public contracting authority or entity for violation of the procurement rules.
A subsequent claim for damages against a contracting entity by the company incurring a loss
as a consequence of a violation of the procurement rules by a contracting authority/entity
cannot be dealt with by the Complaints Board, but is referred to the ordinary courts. The
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