Amendments to the Danish Public Procurement Act came into force on 1 July 2022
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In Denmark, the Public Procurement Directive (2014/24) is implemented into Danish law by the Danish Public Procurement Act (‘the Act’). The Act was introduced in 2016, and the amendments, which the Danish Parliament passed this June, are the first major changes since the Act came into force. The amendments to the Act are coming into force on 1 July 2022. Below we comment on the amendments, which we deem most relevant.
In general, and as the guiding principle for the Danish Parliament while they were debating and subsequently accepting the amendments, the amendments are aimed at strengthening the ‘community contract’ – which is a Danish term used to describe the symbiosis between the public and the private sector in Denmark – further improve the ability of SME’s to supply to the public sector, helping innovation and the possibilities for contracting authorities to use the principle of ‘green procurement’, as well as ensuring more efficient rules and a strengthened framework for tender procedures.
Specifically, the amendments include legal regulation regarding the use of trainees and adjusted rules on eligibility and exclusion: The Minister of Industry is given the legal grounds to impose a “explain or follow” principle for certain types of contracts, meaning that contracting authorities have to use trainees or explain why it is justified not to use trainees in the particular procurement.
The adjustment on the rules on eligibility and exclusion most notably includes a legal basis for the contracting authority to terminate a contract if the party to the contract during the contract finds itself in one of the exclusion grounds, e.g. anti-money laundering or fraud judgments.
The amendments also clarify the rules on when negotiated procedures can be used and when an awarded contract can be amended. The clarifications regarding when the negotiated procedure can be used aligns the language of the Act with the Directive. The amendment regarding when a contract can be amended is also a clarification of the language to align the Act with legal precedence.
Furthermore, the amendments introduce a new legal basis for contracting authorities to further limit the number of participants in a negotiated procedure during the negotiation process. A contacting authority can start with e.g., 5 participants, which based on the first offer before negotiations is limited to 4, and then after the negotiations must be limited to 3 who can then submit the best and final offer.
Finally, the amendments also contain a restriction of the right of access tender documents under the Public Access to Documents Act – aimed at allowing only the parties with a ‘legal interest’ in the particular procurement process access to documents. This change is a confrontation with the general Danish principle of access to file.
