PUBLIC PROCUREMENT - Lexnet

Note on The Danish System http://simap.eu.int/DA/pub/src/d005.html
identify on its own initiative assumed violations and examine complaints received regarding
violations of the rules. The Danish Competition Authority cannot order a contracting
authority to comply with the requirements for ensuring the legality of a procurement
procedure, but can only issue a recommendation to this effect.
(b) Claimants
In contrast to the situation for the Complaints Board, there is no limit, in principle, as to
who is entitled to bring a case before the Danish Competition Authority. Where a complaint
becomes known to the Authority through a company or an organisation that does not have
the requisite legal interest or has not been granted a right to file a complaint with the
Complaints Board, the Authority is nevertheless obliged to examine the case if it is well
founded.
(c) Procedures (including costs)
No charge is payable on the submission of a complaint to the Danish Competition Authority,
and the Authority is not legally entitled to order a party to pay the costs.
The Competition Authority is not legally entitled to made formal decisions and has no
formal authority to demand information for assessment of a case. Instead, the Authority
requests that the contracting authority/entity in question make a statement about the facts
giving cause for the complaint. In nearly all cases, such a request is complied with. When
the Authority steps in, it is the Authority and not the claimant who is a party to the case. The
Authority's assessment of a case is drafted as a recommendation to the contracting entity of
which the claimant receives a copy. If the recommendation of the Competition Authority is
not followed, the case can be brought before the Complaints Board for a decision. With the
Complaints Board as well as with the Danish Competition Authority, the documents are
open for public inspection according to the ordinary rules of administrative law, except for
documents whose contents include the business secrets of a tenderer.
(d) Possible Reactions
In parallel with its non-competence to make decisions, and not being legally authorised to
collect information, the Danish Competition Authority cannot issue an enforcement notice
for the suspension of a procurement procedure or for compliance with requirements for a
procurement procedure to be made legal. If a contracting authority/entity – exceptionally -
has ignored the recommendation from the Danish Competition Authority as to how the
procedures are to be changed to be in conformity with the rules, the Authority will have to
bring the case before the Complaints Board. In many instances, brief reports on the outcome
of complaint cases brought before the Authority are published. In addition to the preventive
effect vis-à-vis the contracting authority or entity in question, publication has a substantial
informative value to contracting authorities/entities in general.
(e) Sanctions
The Danish Competition Authority has – as described above - not been granted particular
default powers except for the option of bringing a case before the Complaints Board.
(f) Strengths
In most of the about one hundred cases which are brought before the Danish Competition
Authority annually, the contracting authority/entity has still not finished the procurement
procedures and awarded the contract. Where there is probable cause to believe that the
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