PUBLIC PROCUREMENT - Lexnet

Note on The Danish System http://simap.eu.int/DA/pub/src/d005.html
injured party thus has to sue for damages through the courts according to the general law of
damages in Denmark. This option is costly and lengthy and not very much used in practice.
Actions for damages through the courts subsequent to orders made by the Complaints Board
have so far been few.
(f) Strengths
It will appear from the above that the Complaints Board functions as an independent
quasi-judicial administrative body set up by law. The activities of the Complaints Board are
governed by regulations which ensures due process protection of the rights of parties
involved and procedural fairness with respect to the application and construction of the
rules. In addition, the procedures of the Complaints Board are much faster than in the
ordinary courts, where cases are decided only after several years.
(g) Weaknesses
The Complaints Board issues on average about 15 orders every year. In two thirds of the
cases, the procurement procedures are found to be unlawful. Experience shows that most
award procedures have been concluded and a binding contract has been signed with a
supplier before the case is brought before the Complaints Board. Therefore it is too late for
the Board to change the outcome of the procurement procedures in practice. In the very few
cases which have been submitted to the Complaints Board before the contract was awarded,
the Complaints Board has rarely used its powers to suspend the procurement procedures.
For these reasons the orders of the Complaints Board have therefore never had as a
consequence that an illegal procurement procedure has been legalised, nor that a
cancellation of a contract has taken place with the result that the contract subsequently has
been – properly – awarded to another tenderer.
In practice, the main function of the Complaints Board has thus been reduced to consist of a
subsequent expression of opinion on the legality of procurement procedures. This means
that an important intention behind the setting up of the Board - to achieve swift and efficient
intervention in procurement procedures while in progress - has not been fully met. Since the
Complaints Board was established, the efficiency of the complaints system in the
procurement area has been regularly criticised. In some instances, in connection with
decisions made by the Complaints Board, it has been pointed out that in spite of a decision
taken in favour of a claimant, this did not lead to changes in the procurement procedure in
question, and no sanctions were imposed. The criticism could, e.g., be met by the
introduction of sanctions which swiftly and efficiently give the aggrieved parties
compensation for damages caused by a violation of EU procurement rules in connection
with participation in procurement procedures.
3. The Danish Competition Authority
(a) Organisation and Competence
The Danish Competition Authority which is a part of the Danish Ministry of Business and
Industry has been the responsible authority in the procurement area since 1993.
In order to increase the possibilities of swift identification of violations of the procurement
rules and a correspondingly swift treatment of complaints, the Danish Competition
Authority was given formal legal authority to bring cases before the Complaints Board. At
the same time the Minister for Business and Industry increased the control of compliance
with the procurement rules, as the Danish Competition Authority was requested to take on a
more active and initiating role in this respect. The Minister asked the Authority to try to
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