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The public procurement rules apply to purchases undertaken by contracting authorities in the field of supplies, services and works.

When a certain contract exceeds the EU threshold value, the contracting authority must observe the rules in the EU public procurement directives.

Forms of advertising

When an individual contract is covered by the EC directives, the contracting authority must submit a contract notice to the Publications Office. The Publications Office publishes the notice in the Official Journal of the EU, i.e. the Tenders Electronic Daily (TED). The advertising in TED initiates the procurement process.

In addition, the contracting authority has the possibility of publishing in advance a notice of intended purchases for the coming year. Such a note is referred to as a Prior Information Notice (PIN).

When the estimated value of a contract is below the indicated EU-threshold, competition under the detailed provisions of the procurement directives is not required, and thus publication in the TED is not mandatory. However, the authority must abide by the EC-Treaty principles and ensure sufficient competition.

Procedures for awarding contracts

In Denmark, the public procurement directives apply directly for contracts above the EU threshold values. This entails that such contracts must be awarded in compliance with the procedures in the directives.

The following sections shortly describe the types of award procedures regulated in the public sector directive (directive 2004/18/EC) and the utilities directive (directive 2004/17/EC), and the procedure for contracts not covered by the directives.

a) Award procedures in the public sector directive

Contracting authorities may use one of the following types of procedures:

• The open procedure. This is a formal tendering procedure under which the call for tender is publicly advertised in the TED and all interested parties are allowed to tender.
• The restricted procedure. This is also a formal tendering procedure, whereby a notice is publicly advertised in the TED inviting potential suppliers to express their interest. The suppliers request to participate, but only those companies invited by the contracting authority may submit a tender.
• Dynamic purchasing systems. A dynamic purchasing system is an entirely electronic process for commonly used purchases generally available on the market. The system is limited in duration and open throughout its validity to any contractor who satisfies the selection criteria and has submitted an indicative tender that complies with the specifications.
• The design contest.The design contest is a competition, in which a contracting authority invites the entry of plans and designs to be judged by a jury under the rules of the competition. As a result, the authority – in most cases – is to acquire the use or ownership of the plans or designs selected by the jury. Design contests may also involve the award of prizes and are mainly used in the fields of town and country planning, architecture and engineering or data processing.

As a general rule the contracting authorities must use one of the procedures above. Under certain circumstances, the contracting authorities may use one of the following exceptional procedures. These can only be used in a limited number of cases carefully defined in the directives:

• The negotiated procedure:Under this procedure the contracting authority simply selects potential contractors with whom to negotiate the terms of contract, awarding the contract to one of these contractors without necessarily following any formal tendering procedure. There are two types of negotiated procedures: the negotiated procedure with advertisement, under which the authority must advertise in the TED to find suitable contractors to negotiate with; and the negotiated procedure without advertisement, whereby the authority is permitted to consult the contractor or contractors of its own choice and negotiate with one or several of these.
• Competitive Dialogue: This procedure can only be used in the case of particularly complex contracts. Under this procedure, any potential contractor may request to participate on the basis of a TED-notice, but only a limited number are admitted to the dialogue. The aim is to develop one ore more suitable solutions capable of meeting the needs of the contracting authority, and on this basis the candidates chosen are invited to tender.
• The accelerated procedure: Under this procedure the contracting authority may use shorter time limits than for the normal restricted or negotiated procedure. This procedure may only be used in exceptional cases, where urgency renders the time limits for the restricted or negotiated procedure impractical.

b) Award procedures in the utilities directive

According to article 40, paragraph 2 and Title III in the utilities directive the contracting entities may choose to use one of the following types of award procedures:

• The open procedure
• The restricted procedure
• Dynamic purchasing system
• Design contest
• The negotiated procedure (with advertisement)

The rules for the procedures above are equal to the public sector directive, except for the fact that the contracting authority is free to choose the negotiated procedure with advertisement.

In the utilities sector two further procedures can be used:

• Qualification Systems This procedure can be used as the first phase of a restricted procedure or a negotiated procedure and is initiated by a contract notice in the TED. The system applies to purchases of a certain type in a fixed period of time. If the duration is more than 3 years, a contract must be published every year. The system must be open to interested contractors throughout the duration. When a contractor is considered qualified, he is added to the contracting authority’s list of qualified contractors, whom the authority can choose between when entering into a contract.
• Award by Prior Information Notice (PIN) Under certain circumstances, a PIN can replace the up-coming contract notices under a restricted or negotiated procedure.

Furthermore, according to article 40, paragraph 3 of the utilities directive, the contracting entities in certain cases may use a procedure without prior call for competition. This procedure is similar to the negotiated procedure without advertisement in the public sector directive.

The utilities directive does not contain an explicit provision for an accelerated procedure.

c) Contracts, which are not covered by the public procurement directives

For contracts not being covered by the EC directives the detailed procedures of the directives do not apply. However, the EC-Treaty provisions on free movement and the treaty-based principles of equal treatment, transparency, proportionality and mutual recognition do apply.

Within the public works sector the Danish Act on Tender Procedures for Public Work Contracts applies to contracts below the EU threshold value. The act also covers contracts concluded by any other entity (including private companies) or body receiving public grants for the work in question, and by contractors who invite tenders from subcontractors in relation to award of public work.

The Danish Act on Tender Procedures offers more flexible procurement methods than the directive, especially as regards the use of the negotiated procedure or negotiation within other procedures.