PUBLIC PROCUREMENT - Lexnet

Note on The Danish System http://simap.eu.int/DA/pub/src/d005.html
procurement rules have been violated, the Authority will take up the case with a view to
obtain a swift and smooth solution. Most of the problems complained about are solved in
this way. Only very exceptionally has the Authority been forced to bring cases before the
Complaints Board. The consideration of complaints by the Authority satisfies to a wide
extent the need for swift and smooth intervention in cases of violation before the award of a
contract. The handling of a case by the Authority takes one month on average.
(g) Weaknesses
As will appear from the above, the Danish Competition Authority has no formal legal
authority to undertake investigations of procurement procedures involving violations of the
rules. The examination of cases by the Authority relies exclusively on instructions from the
minister. A clear indication by the legislator enabling the Authority to investigate and to
make recommendations or express its opinion on the course of a given procurement
procedure will strengthen the position of the Authority and create the basis for a better and
more efficient solution to the problems.
It requires a formal legal authority to collect information about the course of a given contract
award procedure, to recommend to a contracting authoriy/entity that it suspends a
procurement procedure while the case is being considered, to issue recommendations for
compliance with the requirements by the competent authorities for making a procurement
procedure legal and to keep the identity of the claimant secret to the contracting
authority/entity in question where this is necessary for business considerations.
If the legal basis for the activities of the Competition Authority in this area is strengthened,
it will improve its possibilities to intervene early in unlawful procurement procedures. As a
result, a better effect will be obtainable from filing a complaint regarding violations of the
procurement rules.
4. The Courts
Though possible, complaints regarding violations of the procurement rules have, as
mentioned above, not been brought before the ordinary courts instead of the Complaints
Board for first trial as far as we know.
In one case, an order issued by the Complaints Board has been appealed to the courts. No
judgment has been delivered as of yet.
Actions for damages following violation of the procurement rules by a contracting
authority/entity have been brought before the courts in a few cases following an order from
the Complaints Board. Only one judgment is known to have been delivered by the courts in
such a case. In a few cases, an amicable solution of problems relating to a claim for damages
has been found between the public purchaser and the claimant company.
To claim damages before a court is a costly and lengthy process and does not seem to be
used very much in practice. An action for damages presupposes an ascertainable loss.
It may be difficult for a claimant to prove that he ought to have been awarded the contract
(performance interest) and that a loss has been suffered by participation in a procurement
procedure (reliance interest).
So far, no criminal proceedings have been instituted by the prosecution service against a
public contracting authority or entity for violation of the procurement rules.
6 of 8 06-10-01 22:56