Executive Order on the Complaints Board for Public Procurement
Pursuant to Sections 2(3), 4(1) and 5(3) of the Act on the Complaints Board for Public Procurement, No. 415 of 31 May 2000, it is laid down as follows:
Part 1
The Board’s Competence and Organisation
1.—(1) The Complaints Board for Public Procurement will process complaints about infringements of
1) Community law concerning public contracts and utilities tendering; and
2) the Act on the coordination of procedures for the award of public works contracts and procurement, etc., or rules issued in pursuance thereof.
(2) The Board will also process complaints about decisions on accreditation etc. taken by DANAK/The Danish Agency for Trade and Industry pursuant to Section 10(2), cf. Section 16(4), of the Act on Development of Trade and Industry that involve refusal or limited acceptance of an application for accreditation, suspension or restriction of a previously granted accreditation, or removal from the register of laboratories carrying out laboratory work in accordance with the principles of good laboratory practice (GLP).
(3) The Board is also empowered to process other complaints where a right of complaint to the Board has been laid down in or pursuant to a statute.
2.—(1) The Board shall be comprised of a Chairman, a number of Deputy Chairmen, and a number of expert members, appointed by the Minister for Economic and Business Affairs for a period of four years.
(2) The Chairman and Deputy Chairmen shall be members of the judiciary.
(3) The Chairman, Deputy Chairmen and other members of the Board can be re-appointed. The appointment shall terminate at the end of the month in which the person concerned reaches the age of 70.
3.—(1) The Chairman shall arrange the work of the Board and its secretariat. The Chairman is responsible for calling meetings, leads meetings and sees to it that the work is performed promptly and efficiently.
(2) The Chairman may authorise a Deputy Chairman to act in his stead.
(3) The Chairman shall determine in what way decisions of the Board shall be published.
4.—(1) The Chairman or a Deputy Chairman must participate in the processing of a case. However, the Chairman and Deputy Chairmen may decide that either the Chairman and one Deputy Chairman or two Deputy Chairmen shall participate.
(2) The distribution of individual cases between the Chairman and the Deputy Chairmen shall be determined by the Chairman in consultation with the Deputy Chairmen.
(3) Where a case has been assigned to a Deputy Chairman in accordance with subsection (2) hereof, the powers of that Deputy Chairman in respect of that case shall be those of the Chairman.
5.—(1) Two expert members are also required to participate in the processing of a case. However, in cases where a decision has been taken in accordance with the second sentence of Section 4(1), the participation of four expert members is required.
(2) The expert members to participate in the processing of a case shall be appointed by the Chairman, having regard to the nature of that particular case.
(3) Where a decision requires knowledge of attestation work, certification of persons, systems or products, or inspection, at least one of the expert members must have special knowledge of the area concerned.
6.—(1) Complaints that do not fall within the Board’s competence or are submitted by a person not entitled to do so shall be dismissed by the Board or by its Chairman acting on its behalf.
(2) Complaints against an awarding body using a geographical area for the purpose of prospecting for or extraction of oil, gas, coal or other solid fuel are excluded from processing by the Board. The Board shall dismiss such complaints, cf. subsection (1) hereof.
7.—(1) The Board shall have the power to dismiss a complaint or to determine it on its merits wholly or in part. In so doing it may annul unlawful decisions or order the awarding body to bring the award process into conformity with legislation.
(2) A complaint shall have suspensive effect only to the extent laid down in legislation. However, the Board or its Chairman acting on its behalf shall have the power to order that a complaint shall have suspensive effect in cases where there are special grounds that call for such an order to be made.
(3) In cases where a complaint brought before the Board is wholly or partly upheld, the Board shall have the power to order the awarding body to render the complainant compensation in accordance with a claim for losses suffered in consequence of infringement of the rules referred to in Section 1(1).
(4) In cases where a complaint brought before the Board is wholly or partly upheld, the Board shall have the power to order the awarding body to refund to the complainant the costs incurred by the complainant in connection with bringing the complaint.
8. The preliminary proceedings in a case to be decided by the Board shall consist of an exchange of pleadings after which the case shall be argued orally, unless the Chairman decides otherwise.
9. The working language of the Board shall be Danish. However, the Chairman can allow documents in another language to be submitted.
10.—(1) Complaints must be submitted in writing to the Complaints Board for Public Procurement: Klagenævnet for Udbud, Sekretariatet, Kampmannsgade 1, DK-1780 Copenhagen V.
(2) A complaint to the Board must be accompanied by a fee of DKK 4000. If the fee is not submitted together with the complaint and is not paid within a period set by the Chairman, the complaint shall be dismissed.
(3) If a complaint is dismissed, the fee shall be refunded.
11.—(1) The Board is empowered to demand all information that it considers necessary for its work or to determine whether a matter falls within its competence.
(2) In cases of failure to supply information as mentioned in subsection (1) hereof, the Board shall have the power as a sanction to impose daily fines, which may be collected by distraint.
12. When supplying information about technical or business secrets, the person required to supply such information may apply to the Chairman requesting that the information not be disclosed to the full Board. The Chairman shall then determine to what extent and in what form the information should be disclosed, having regard to the nature of the circumstances.
Part 2
Preliminary Proceedings
13.—(1) No later than at the time when the complaint is submitted, the complainant shall inform the awarding body in writing of the alleged infringements and that a complaint is being brought before the Board.
(2) The complaint to the Board shall be accompanied by a copy of the notification to the awarding body. Should such a copy notification not be submitted together with the complaint, a time-limit shall be set for this condition to be met. If the condition is not met before the expiry of the time allowed, the complaint shall be dismissed.
14.—(1) Complaints under Section 1(1) can be submitted by:
1) any person having a legal interest therein;
2) the Danish Competition Authority;
3) the Ministry of Housing and Urban Affairs; and
4) the organisations and authorities specified in the Appendix.
(2) Complaints under Section 1(2) and 1(3) can be submitted by any person having a legal interest therein, except where special rules have been laid down concerning the right of complaint.
(3) The Board or its Chairman acting on its behalf shall have the power to allow a third party or public authority to whom the case is considered to be of substantial importance to enter into the case in support of the complainant or the defendant.
(4) The Chairman shall have the power to order that a third party or public authority be informed of a case brought before the Board so that the party or authority concerned is given an opportunity to apply for leave to participate in accordance with subsection (3) hereof.
15.—(1) The complaint shall be presented to the defendant, who, within a period specified by the Board, must submit a statement of the factual and legal circumstances of the matter and forward the case documents.
(2) The Board or its Chairman shall have the power to request the complainant, the defendant, or a third party brought into the case in accordance with Section 14(3), to produce information considered to be of importance for the determination of the matter. Should such information not be produced within a specified period, the Board may view this as detrimental to the case of the party concerned.
(3) The Board or its Chairman may obtain other information as considered appropriate.
16.—(1) The complainant and any other party brought into the case in accordance with Section 14(3) shall be given access to the statement referred to in Section 15(1) and to the other material presented in the case, unless access to inspection of documents is restricted by other legislation. They shall be given the opportunity to reply.
(2) The Chairman may decide that further pleadings are to be exchanged and determines the close of pleadings. The Chairman may order that preliminary written proceedings are to be resumed, and in what form.
Part 3
Determination of the Case
17.—(1) The complainant, the defendant and any other party brought into the case in accordance with Section 14(3) shall be notified of the place and time of the hearing.
(2) The parties mentioned in subsection (1) hereof shall have the right to be accompanied at the hearing by a lawyer, accountant or other expert representative. The Chairman may, where the content of the matter renders it desirable, recommend that a party is represented.
(3) The form of the hearing shall be determined by the Chairman, who shall decide in what order the parties shall speak and when the proceedings are concluded.
(4) The hearing shall not be open to the public or any persons other than those mentioned in subsections (1) and (2) hereof, unless all the parties agree to such access.
(5) If the hearing is to be open to the public, it shall if possible be announced by a notice posted at least three days in advance on the Commerce and Companies Agency’s Notice Board. The Danish Competition Authority shall be informed at the same time.
18. Cases that are not argued orally shall be determined by the Board on the basis of written deliberation, possibly at a meeting. This shall be decided by the Chairman.
19.—(1) Decisions of the Board are taken by ordinary majority of votes.
(2) If the decision is not unanimous, the text of the ruling must include the minority view.
(3) The decision must be accompanied by a statement of the grounds on which it was reached and communicated in writing to the complainant, the defendant and any other party brought into the case.
(4) Where a complaint brought before the Board is wholly or partly upheld, or the contested decision is changed by the defendant to accord with the complainant’s claim, the fee deposited shall be refunded to the complainant.
20.—(1) A decision of the Complaints Board for Public Procurement cannot be brought before another administrative authority.
(2) A decision of the Board can be brought before the Courts no later than eight weeks after it has been communicated to the parties, but see also subsection (3) hereof. If the matter is not brought before the Courts before the expiry of the stated period, the decision of the Board shall be final.
(3) A decision of the Board that a complaint is to be dismissed under Section 6(2) cannot be brought before the Courts.
21.—(1) This Order shall enter into force on 5 July 2000.
(2) Executive Order No. 26 of 23 January 1996 on the Complaints Board for Public Procurement is revoked.
The Danish Competition Authority, 26 July 2000
Niels Erik Monrad
/Peter Dethlefsen