Act on the Complaints Board for Public Procurement
Changes to this Act have been adopted in 2006 and 2007. These changes have not been incorporated into the following text, but can instead be found by clicking on the links below.
These changes are only available in Danish.
lov nr. 538 af 8. juni 2006
lov nr. 572 af 6. juni 2007
Scope of the Act
1.—(1) The present Act shall apply to complaints against awarding bodies relating to infringement of
1) Community law concerning the awarding of public contracts and utilities tendering;
2) the Act on the coordination of procedures for the award of public works contracts and procurement, etc., or rules issued in pursuance thereof; or
3) the Act on invitations to tender in the building and construction sector.
(2) “Community Law” shall be understood to mean the Treaty establishing the European Community and acts adopted pursuant thereto.
(3) “Awarding bodies” shall be understood to mean authorities and other public-law bodies and utilities falling within the scope of the directives on the awarding of public contracts and utilities tendering.
The Organisation and Powers of the Complaints Board
2.—(1) The Complaints Board for Public Procurement shall be comprised of a Chairman, a number of Deputy Chairmen, and a number of expert members.
(2) The Chairman, Deputy Chairmen and members of the Board shall be appointed by the Minister for Economic and Business Affairs for a period of four years. The Chairman and Deputy Chairmen shall be members of the judiciary. The members of the Board shall be appointed from among persons having knowledge of building and construction, public procurement, transport and other associated activities.
(3) The Chairman or a Deputy Chairman must participate in ruling upon each complaint. However, the Chairman and Deputy Chairmen may decide that either the Chairman and one Deputy Chairman or two Deputy Chairmen shall participate. Two, or in special cases four, of the expert members shall also participate. These shall be chosen by the Chairman in accordance with rules laid down by the Minister for Economic and Business Affairs.
3.—(1) The Complaints Board shall be empowered to process complaints concerning infringement of rules as mentioned in Section 1(1).
(2) However, 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 any such complaint brought before it.
(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.
4.—(1) Complaints can be submitted to the Board by:
1) any person having a legal interest therein;
2) the Danish Competition Authority; and
3) the organisations and public authorities to whom the Minister for Economic and Business Affairs grants complaints procedure access.
(2) The Board shall have the power to allow a third party or public authority to whom the case is of substantial importance to enter into the case in support of the complainant or the defendant.
(3) No later than at the time when the complaint is submitted, the complainant shall inform the awarding body in writing of the alleged infringement and that a complaint is being brought before the Board.
5.—(1) 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.
(2) 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.
(3) The Minister for Economic and Business Affairs shall lay down the Board’s rules of procedure and the detailed rules for its activities, including on case processing, the fee for submission of complaints, and publication of decisions.
5 a. The Minister for Economic and Business Affairs is entitled to set conditions for the possibility of using digital communication within the scope of the Act as well as the relevant detailed terms including deviation form formal requirements hindering the use of digital communication.
6.—(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).
7. 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.—(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. If the matter is not brought before the Courts before the expiry of the stated period, the decision of the Board shall be final. However, a decision of the Board that a complaint as referred to in Section 3(2) is to be dismissed cannot be brought before the Courts.
Special provisions relating to awarding bodies in accordance with Council Directive 93/38/EEC on coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunication sectors
9.—(1) Notwithstanding the provisions of Sections 3 and 11 of this Act, any person who has or has had an interest in obtaining a contract that falls within the scope of Council Directive 93/38/EEC on coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunication sectors and who considers that an awarding body has infringed these rules shall have the right to request that the matter is examined by means of the special conciliation procedure in accordance with Council Directive 92/13/EEC.
(2) The request must be made in writing to the European Commission or the Danish Competition Authority.
10. An awarding body shall be liable to pay damages to an enterprise if the enterprise can show that the awarding body has infringed the rules of Council Directive 93/38/EEC on coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunication sectors, and that a real possibility that the enterprise would have obtained the contract was lost as a consequence of the infringement.
11.—(1) Complaints as mentioned in Section 1(1) against an awarding body using a geographical area for the purpose of prospecting for or extraction of oil, gas, coal or other solid fuel, shall be brought before the Maritime and Commercial Court as urgent matters. Only a court fee of DKK 500 shall be payable in such cases.
(2) In the case of a complaint against an awarding body of the kind referred to in subsection (1) hereof, an order annulling an unlawful decision, suspending an award procedure or requiring the awarding body to bring the award process into conformity with legislation, can only be made where the action complained about is subject to public prosecution and can entail a more severe penalty than a fine, or where the case is being processed under Section 727(2)-(3) of the Administration of Justice Act. Conversely, a claim for such an order to be made cannot be entertained in the case of an infringement that is subject only to private prosecution.
Penalties etc.
12.—(1) Unless a more severe penalty is due under other legislation, it shall be punishable by fine deliberately or with gross negligence to supply incorrect or misleading information to the Complaints Board for Public Procurement, fail to disclose significant circumstances pertaining to the case in question, or fail to comply with an order or prohibition issued by the Complaints Board for Public Procurement in accordance with Section 6(1) or (2) or by the Courts in accordance with Section 11(2).
(2) Companies etc. (legal persons) can be held criminally liable in accordance with the rules in Part 5 of the criminal code.
13.—(1) In cases of failure to furnish the Complaints Board with information required in accordance with Section 5(2), the Board shall have the power as a sanction to impose daily fines, which may be collected by distraint.
(2) Fines pursuant to section 13 (1) may furthermore be collected through witholding of pay etc. according to the rules on collection of personal taxes pursuant to the PAYE taxation system.
(3) The authority responsible for collecting arrears may according to the rules in the Act on Collection cancel claims pursuant to section 13 (1).
Entry into Force, etc.
14.—(1) This Act shall enter into force on <st1:date Month="7" Day="1" Year="2000">1 July 2000</st1:date>.
(2) The Act on the Complaints Board for Public Procurement (award of public works contracts and procurement in the European Communities), cf. Consolidated Act No. 1166 of <st1:date Month="12" Day="20" Year="1995">20 December 1995</st1:date>, is repealed.
(3) Rules laid down pursuant to Sections 4, 8 and 12 of the Act on the Complaints Board for Public Procurement (award of public works contracts and procurement in the European Communities), cf. Consolidated Act No. 1166 of 20 December 1995, shall remain in force until they are cancelled or superseded by rules laid down in pursuance of the present Act.
15. The present Act does not apply to the Faeroes or <st1:place>Greenland</st1:place>.
16. The Act on the coordination of procedures for the award of public works contracts and procurement, etc., cf. Consolidated Act No. 600 of <st1:date Month="6" Day="30" Year="1992">30 June 1992</st1:date>, shall be amended as follows:
1. In Section 3, the following shall be inserted as subsection (3):
“(3) Cases concerning penalties for infringement of provisions laid down pursuant to Sections 1 and 2 are subject to private prosecution when they are committed by an awarding body using a geographical area for the purpose of prospecting for or extraction of oil, gas, coal or other solid fuel. However, if the action complained about also comprises an offence that is subject to public prosecution and can entail a more severe penalty than a fine, the prosecuting authority may make both infringements the subject of one prosecution. In such circumstances a private prosecution shall be dismissed by the Court to the extent a penalty is sought.”
Official Notes</o:p> |
his Act contains provisions implementing Council Directive No. 89/665/EEC, Official Journal of the European Communities 1989 L 395, p. 33; Council Directive No. 92/13/EEC, Official Journal of the European Communities 1992 L 76, p. 14; and Council Directive 92/50/EEC, art. 41, Official Journal of the European Communities 1992 L 209, p. 15.