PUBLIC PROCUREMENT - Lexnet

Note on The Danish System http://simap.eu.int/DA/pub/src/d005.html
5. Cross-border Cases
At the end of 1996, the Danish Competition Authority took the initiative to cooperate with
seven other Member States and the Commission for the handling of cross-border cases.
These are cases where a company wishing to participate in procedures for the award of a
public contract in another country encounter obstacles due to non-compliance with the EU
procurement rules. Violations may involve for example illegal use of the accelerated
procedure, obscure award criteria, or the non-observance of the obligation to publish a prior
call for tenders in relation to a contract where this is required etc.
The Danish Competition Authority considers cases submitted by domestic companies
encountering problems in other countries as well as cases filed by foreign companies
encountering problems when partipating in the competition for a public contract in
Denmark.
The case is considered by the Authority which will swiftly examine it and try to obtain the
necessary information as far as possible. When the problem has been identified, the
authority resonsible for procurement matters (the "sister authority") in the country where the
given procurement procedure has been contested will be contacted and the problem
explained. This authority may be able to assist in solving the problem. If, however, the
contract in question has already been awarded at the time where a complaint is received, the
case may have to be submitted to the Commission for further action.
The Danish Competition Authority has considered several cross-border cases. In some
instances the claimant wanted to stop the case before final consideration, either because the
company found an alternative way of obtaining the contract or because of fear of being
blacklisted. Some other cases have been brought before the Commission and upon
examination it was established that the procurement rules had been violated. At the time of
writing, some cases are being considered by the Danish Competition Authority and its
foreign counterpart.
It is important that all companies in the EU receive fair and equal opportunities to
participate in competitions for public contracts in the individual Member States. In practice,
it is difficult to secure a cross border enforcement of the procurement rules. In particular,
factual information about a specific procurement procedure in another country has proved
difficult to obtain. The cooperation in the Pilot Project context may prove a good starting
point for further developments in dealing with cross-border cases. This subject will be
brought up for discussion later.
6. Comparison of the functions of the Complaints Board and the Danish
Competition Authority
(a) The Complaints Board
The Complaints Board is a quasi-judicial administrative body acting very much like a court
of law in many respects. As will appear from the above, developments have shown that the
Complaints Board primarily expresses its opinions on the legality of procurement
procedures at a stage where a binding contract has already been concluded with a supplier.
To sum up, the main function of the Complaints Board is the determination of the
framework for interpretation and application of the EU procurement rules in Denmark.
(b) The Danish Competition Authority
serve as a contact point for the rapid, informal solution of problems encountered in
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