The legal landscape for a contracting authority’s collection of supplementary information from a tenderer has been modified by a Danish court

Up until the judgment, the interpretation of the Danish rule for a contracting authority’s collection of supplementary information was that such collection had to be supplementary – i.e., in the case of references, the collection could only entail supplementary information about the submitted references, but not the collection of new references. Further, the consensus was that the collection of supplementary information could not be done after an award decision.

In the new judgment, the issue was that the contracting authority after the contract had been awarded, but before the contract was signed, was made aware that the documentation for technical requirements for the winner of the tender, did not live up to the minimum requirements. Once the Contracting authority was made aware of the deficiency, the contracting authority contacted the tenderer and allowed the tenderer to submit new documentation for the minimum requirements in the form of new references. The runner up in the tender procedure filed a complaint with the Danish Complaints Board for Public Procurement claiming that the Danish rule regarding the collection of supplementary information did not allow for new information to be collected by the contracting authority in the form of new references. The Complaint Board found in favour of the complainant and annulled the contracting authority’s award decision. The Complaints Boards decision was then brought before the Danish courts by the contracting authority.

The court stated that since the new supplementary information was historical information, had no effect on the actual tender and did not provide the tenderer with an advantage, the collection of the new references by the contracting authority, even after the award decision, was allowed.

This judgment has been appealed by the original complainant, but until the High Court has passed its judgment, the legal landscape in Denmark in relation to collection of supplementary information allows for new information to be collected, also after an award decision, as long as the newly collected information is historical, does not allow the tenderer to renew or better his offer and does not give the tenderer an unfair advantage.

Bird & Bird’s comment

In view of the principle of proportionality, it seems right that new historical information can be submitted post award decision, as long as the tenderer is not provided with an opportunity to revise his tender. As long as the new information relates to suitability of the tenderer and not the actual tender, it would seem disproportionate not to allow the collection of the new information or documentation, also after an award decision. It remains, however, interesting to see whether the High Court in such an approach would include a general possibility to submit new references since this this would essentially allow a tenderer to make his sometimes difficult selection of the right references after the date for submitting these.