Public
Procurement Law

1.1 What is the relevant legislation, and, in outline, what does each piece of legislation cover?

The main pieces of legislation are:

• The Public Procurement Act (Udbudsloven): This is the central piece of Danish procurement legislation, implementing the European Union (EU) Public Procurement Directive into national law. It governs the award of public contracts above the EU thresholds by national, regional, and local authorities as well as certain sector-specific entities. The Act lays down detailed rules on procedures, time limits, selection and award criteria, and contract performance. It is built on the EU core principles of equal treatment, transparency and proportionality, which ensures that public funds are spent efficiently and fairly.
• The Utilities Directive (Forsyningsvirksomhedsdirektivet): This applies to contracting entities operating in the utilities sector, such as water, energy, transport, and postal services. The Directive provides a procurement framework that recognises the specific characteristics of these sectors, including their market structures and the need for greater procedural flexibility compared to general public procurement rules.
• The Concessions Directive (Koncessionsdirektivet): This governs the award of concession contracts, where a concessionaire is given, e.g., the right to operate a service or project and normally collect revenue. This Directive outlines how these contracts should be awarded and managed, focusing on principles similar to those in the general procurement directives.
• The Defence and Security Procurement Directive (Forsvars- og sikkerhedsdirektivet): This applies to procurement in the fields of defence and security. This includes specific rules to protect national security interests while ensuring competition and transparency where possible.
• The Danish Tendering Act (Tilbudsloven): This primarily applies to public construction and civil engineering contracts below the EU thresholds. While it shares core principles with the Public Procurement Act, it is generally less detailed and more flexible in its procedural requirements. As a result, it allows greater discretion for contracting authorities.
• The Danish Complaints Board for Public Procurement Act (Lov om Klagenævnet for Udbud): In Danish procurement law, the Complaints Board for Public Procurement (Klagenævnet for Udbud) plays a crucial role. This body handles disputes arising from public procurement processes. It should be noted that the Board's decisions can be appealed to the Danish courts, and under certain circumstances, these decisions may be further appealed to the European Court of Justice (ECJ).
• The Danish Public Information Act (Offentlighedsloven) and the Danish Public Administration Act (Forvaltningsloven): These Acts ensure transparency and accountability in Danish procurement law, cf. question 1.4 below.

1.2 What are the basic underlying principles of the regime (e.g. value for money, equal treatment, transparency) and are these principles relevant to the interpretation of the legislation?

The fundamental principles of Danish procurement law are:

• Equality of treatment.
• Transparency.
• Proportionality.

These originate from EU law and are essential to the interpretation of the regulation.

They apply throughout the entire procurement process, from planning to contract award and management, ensuring fair, open, and non-discriminatory procedures. These principles also support broader objectives such as the prudent use of public resources securing the most economically advantageous tender.

1.3 Are there special rules in relation to procurement in specific sectors or areas?

Danish procurement law contains specific rules for certain sectors, based on corresponding EU directives:

• Utilities (e.g. water, energy, transport, postal services) are regulated by the Utilities Directive, which allows greater flexibility to reflect the operational needs of these often monopolistic sectors.
• Defence and security procurement is governed by the Defence and Security Procurement Directive, which balances transparency with national security needs, including rules on classified information and security of supply.
• Health and social services are subject to a "light regime" with more flexible rules, taking into account the unique nature of these services.
• Concessions are regulated by the Concessions Directive, which provides a distinct framework suited to these special types of contracts.

1.4 Are there other areas of national law, such as government transparency rules, that are relevant to public procurement?

There are several areas of national law that significantly intersect with public procurement, particularly regarding public transparency and administrative procedures. These laws collectively help to ensure that public procurement in Denmark is conducted in compliance with the rules on transparency and good administrative practice:

• The Danish Public Information Act: This law plays a crucial role in ensuring transparency in public procurement. It allows companies to request access to government documents, including those related to public procurement processes.
• The Danish Public Administration Act: This Act provides the framework for how public authorities should conduct their administrative functions, including public procurement. It includes provisions on the right to appeal administrative decisions and the obligation of authorities to justify their decisions. Also, this ensures that the procurement processes are conducted in a fair and lawful manner. Additionally, it enables tenderers to request access to any documents relevant to a public procurement that the tender has participated in. Generally, this access to documents is more comprehensive than the access provided under the Danish Public Information Act.

1.5 How does the regime relate to supra-national regimes including the GPA, EU rules and other international agreements?

Danish procurement law is significantly influenced by supranational regimes, particularly those of the EU, due to Denmark's EU membership.

2.1 Which categories/types of entities are covered by the relevant legislation as purchasers?

Danish procurement legislation applies to a range of public entities, all of which must comply with relevant rules to ensure fair and transparent procurement, e.g.:

• Public authorities such as central government, regions, and municipalities.
• Public sector bodies with separate legal status, established to serve the public interest without commercial objectives, and largely funded or controlled by public institutions.
• Utilities operators in sectors like water, energy, transport, and postal services, governed by special rules under the Utilities Directive.
• Concession holders that are awarded contracts to deliver, e.g. public services, typically through long-term agreements where income is generated.
• Providers of health and social services, typically subject to lighter procurement rules due to the nature of their activities.

2.2 Which types of contracts are covered?

A successful procurement process will result in a framework agreement or a specific contract.

Framework agreements are agreements between one or more contracting authorities and suppliers that set the terms for future purchases, typically on price and quantity. They streamline repeated procurement by avoiding new tenders for each purchase. This method is particularly effective for managing frequent or repeated purchases.

Contracts may take various forms, generally following one of the categories below, sometimes in combination:

• Supply contracts.
• Service contracts.
• Works contracts.
• Concession contracts.

2.3 Are there financial thresholds for determining individual contract coverage?

Danish procurement law, aligned with EU directives, applies financial thresholds to determine when public contracts are subject to formal procurement procedures. Key thresholds include:

• €143,000 for central government contracts.
• €221,000 for local and regional government contracts.
• €443,000 for supply and service contracts in the utilities sector.
• €750,000 for social, health, and similar services under the "light regime".
• €5,538,000 for public works and concession contracts.

Thresholds are set in EUR and are periodically adjusted.

2.4 Are there aggregation and/or anti-avoidance rules?

Yes, Danish procurement law includes specific aggregation and anti-avoidance rules designed to prevent contracting authorities from circumventing the procurement rules. These rules ensure that the principles of transparency, competition, and non-discrimination are upheld throughout the procurement process.

2.5 Are there special rules for concession contracts, and if so, how are such contracts defined?

A concession contract grants a company the right to operate a public service or carry out works, with the right to exploit the service or works and earn revenue primarily from users rather than from the contracting authority. There are two types of concessions: service concessions; and works concessions.

The Concessions Directive governs concession contracts, which ensures transparency, fair competition, and non-discrimination in the awarding process. The rules are more flexible, e.g. allowing negotiations due to the complex nature of concessions.

2.6 Are there special rules for the conclusion of framework agreements?

Framework Agreements Rules:

• Duration: Typically limited to four years unless special circumstances justify longer.
• Suppliers: Can involve one or several suppliers.
• Procurement procedures: Must follow standard public procurement procedures.
• Call–off contracts: Awarded based on the framework's terms.

These rules ensure that framework agreements are used effectively, maintaining competition and transparency in public procurement.

2.7 Are there special rules on the division of contracts into lots?

Contracting authorities are encouraged to divide contracts into lots to promote competition, particularly for small and medium-sized enterprises (SMEs), and must justify clearly if they choose not to.

2.8 What obligations do purchasers owe to suppliers established outside your jurisdiction?

Purchasers must treat suppliers established outside Denmark equally and without discrimination. This means purchasers must ensure transparency, equal access, and fair competition, applying procurement rules consistently regardless of the suppliers' nationality or jurisdiction.

3.1 What types of award procedures are available? Please specify the main stages of each procedure and whether there is a free choice amongst them.

In Danish procurement law, the following award procedures are primarily available:

• Open procedure: All interested economic operators may submit a tender without prior pre-qualification.
  Main stages: publication; submission of tenders; evaluation; and contract award and notice.
• Restricted procedure: Any economic operator may apply, but only selected (pre-qualified) economic operators may submit tenders.
  Main stages: publication; pre-qualification; invitation to submit tenders; submission of tenders; evaluation; and contract award and notice.
• Negotiated procedure with prior publication: Selected economic operators are invited to negotiate contract terms before submitting final tenders.
  Main stages: publication; pre-qualification; initial tenders; negotiation; final tenders; evaluation; and contract award and notice.
• Negotiated procedure without prior publication: Used only in exceptional cases, e.g. extreme urgency. No prior procurement notice is published.
  Main stages: direct invitation to negotiate; negotiation; and contract award and notice.
• Competitive dialogue: Used for complex contracts where the contracting authority negotiates with selected economic operators before final tenders.
  Main stages: publication; pre-qualification; dialogue phase (negotiations/dialogue); final tenders; evaluation; and contract award and notice.
• Innovation partnership: Procedure aiming to develop innovative solutions not available on the market.
  Main stages: publication; pre-qualification; negotiation and innovation development; submission of tenders; evaluation; and contract award and notice.

The open and restricted procedures are freely selectable. Other procedures can only be chosen if specific legal conditions, such as complexity or the need for negotiation, are met.

3.2 What are the minimum timescales?

The minimum timescales depend on the chosen procedure, e.g.:

• Open procedure:
  Minimum 35 days from publication of the contract notice to submission of tenders.
  Reduced to 30 days if electronic submission is accepted.
  Can be shortened to 15 days in urgent situations.
• Restricted procedure and negotiated procedure with publication:
  Minimum 30 days from contract notice publication to submission of applications for pre-qualification.
  Minimum 30 days from invitation to submit tenders to submission of tenders.
  Can be reduced to 25 days if electronic submission is accepted.

3.3 What are the rules on excluding/short-listing tenderers?

Tenderers can be excluded for mandatory reasons (e.g. corruption, fraud, unpaid taxes) or discretionary grounds (e.g. conflicts of interest). In procedures like the restricted or negotiated procedure, authorities may shortlist based on published financial and technical criteria, ensuring genuine competition.

3.4 What are the rules on the evaluation of tenders? In particular, to what extent are factors other than price taken into account (e.g. social value)?

Under Danish procurement law, tenders must be evaluated based on the principle of the most economically advantageous tender. This principle nonetheless allows for the consideration of criteria beyond price alone.

Evaluation criteria must be objective, transparent, and directly related to the subject matter of the contract.

Common non-price factors include:

• Quality and technical merit.
• Environmental sustainability.
• Delivery timelines.
• Social value.

Authorities must clearly specify the evaluation criteria and their weighting in the procurement documents.

3.5 What are the rules on the evaluation of abnormally low tenders?

Contracting authorities must investigate tenders that appear abnormally low, and they are required to request an explanation from the bidder.

If the explanation is unsatisfactory, the tender must be rejected.

3.6 What are the rules on awarding the contract?

Under Danish procurement law, contracts must be awarded in accordance with the criteria set out in the procurement documents, and in line with the regulation.

Before awarding in general, the contracting authority must notify all tenderers of the intended decision and provide reasons and evaluation details. A mandatory standstill period (typically 10 calendar days) then applies, during which the contract cannot be signed. Only after this period – if no complaint is filed – can the contract be formally concluded.

3.7 What are the rules on debriefing unsuccessful bidders?

Unsuccessful bidders must be informed of the outcome and given clear reasons for the rejection of their tender. Authorities must explain the decision, including the characteristics and relative advantages of the winning bid, and – where relevant – evaluation scores or rankings. This information must, in general, be shared before the standstill period (typically 10 days) to allow for effective review or challenge.

3.8 What methods are available for joint procurements?

Under Danish procurement law, contracting authorities may use the following methods for joint procurement:

• Central purchasing bodies: Authorities can procure jointly through centralised purchasing bodies (indkøbscentraler), which act on behalf of multiple authorities.
• Joint framework agreements: Authorities may establish or use shared framework agreements to streamline future procurement.
• Ad hoc joint procurements: Authorities can jointly conduct a specific procurement, combining their purchasing needs into a single contract.

These methods facilitate efficiency and reduced administrative burdens.

3.9 What are the rules on alternative/variant bids?

Alternative bids are only allowed if expressly permitted in the procurement documents, which must specify minimum requirements and evaluation criteria. They must relate to the contract, and equal treatment must be ensured. If not permitted, alternative bids cannot be submitted.

3.10 What are the rules on conflicts of interest?

Contracting authorities must identify and proportionately manage conflicts of interest to ensure impartiality. This includes: excluding conflicted economic operators; documenting mitigation steps; or taking preventive measures. Failure to do so may lead to complaints and annulment of the procedure or the awarded contract.

3.11 What are the rules on market engagement and the involvement of potential bidders in the preparation of a procurement procedure?

Market engagement is allowed but must not distort competition or give unfair advantages. Authorities must ensure transparency and equal access to information, and any advantage must be neutralised, or the economic operator may be excluded.

4.1 What are the principal exclusions/exemptions?

Principal exemptions in Danish procurement law include in-house contracts and cooperation between public authorities.

4.2 How does the law apply to "in-house" arrangements, including contracts awarded within a single entity, within groups and between public bodies?

In-house contracts are exempt if the authority controls the entity and most of its activities serve the authority.

5.1 Does the legislation provide for remedies, and if so, what is the general outline of this?

Danish procurement regulation provides for remedies to ensure effective enforcement of procurement rules and unsuccessful bidders may file complaints with the Complaints Board for Public Procurement.

Available remedies include:

• Suspension of the procurement process.
• Annulment of unlawful decisions.
• Declaration of ineffectiveness for unlawfully awarded contracts.
• Order to bring the matter into compliance with the law.
• Financial compensation for documented losses.
• Fines.

There is also, in general, a mandatory standstill period (typically 10 calendar days) before contract conclusion, allowing time to challenge the award decision.

Decisions of the Complaints Board may be appealed to the Danish courts within eight weeks.

5.2 Can remedies be sought in other types of proceedings or applications outside the legislation?

Yes, remedies may also be sought outside the specific procurement complaint system in certain cases.

5.3 Before which body or bodies can remedies be sought?

Remedies in Danish procurement law can be sought before the following bodies:

• Complaints Board for Public Procurement.
• Ordinary Danish courts.
• ECJ.

As a general rule, complaints must be brought before the Complaints Board for Public Procurement as the first instance.

5.4 What are the limitation periods for applying for remedies?

Limitation periods for seeking remedies under Danish procurement law vary depending on the type of remedy, e.g.:

• Complaints to the Complaints Board for Public Procurement:
  Before contract award: 10 calendar days from when the award decision is notified to the tenderers.
  After contract award: Generally within 45 days from publication of the contract award notice, and six months when it is a framework agreement.

5.5 What measures can be taken to shorten limitation periods?

In Danish procurement law, the main measure to shorten limitation periods is the publication of a contract award notice. This triggers a 45-day deadline for filing complaints with the Complaints Board for Public Procurement.

Additionally, issuing a standstill notification starts a 10-day standstill period, after which the contract can be signed unless a complaint is filed – minimising legal uncertainty.

5.6 What remedies are available after contract signature?

After contract signature, Danish procurement law still allows for certain remedies, though they are more limited compared to pre-award remedies.

5.7 What is the likely timescale if an application for remedies is made?

The likely timescale for remedies application in Danish procurement law depends on the forum and the complexity of the case.

5.8 What are the leading examples of cases in which remedies measures have been obtained?

All decisions by the Complaints Board for Public Procurement are published and publicly accessible. There is extensive case law covering all key areas.

5.9 What mitigation measures, if any, are available to contracting authorities?

Contracting authorities have several mitigation measures available to manage risks and ensure compliance with Danish procurement law, e.g.:

• Pre-market consultations: Authorities can engage with the market before initiating a procurement to clarify requirements, reduce risks, and inform economic operators, ensuring better compliance and fewer challenges.
• Transparent processes: By ensuring clear and consistent communication throughout the procurement process, e.g. thorough Q&A, authorities can reduce the likelihood of legal challenges based on unfair treatment or lack of transparency.
• Use of framework agreements: Framework agreements can be employed to simplify procurement for recurring needs, thereby minimising the risk of procedural errors and reducing the burden of frequent tenders.
• Risk-based contract management: Implementing effective contract management.

These measures help authorities minimise legal risks, ensure fairness, and maintain compliance with procurement regulations.

6.1 Does the legislation govern changes to contract specifications, changes to the timetable, changes to contract conditions (including extensions) and changes to the membership of bidding consortia pre-contract award? If not, what are the underlying principles governing these issues?

Yes, Danish procurement law governs changes to contract specifications, timetables, contract conditions and extensions, and changes to the membership of bidding consortia pre-contract award.

It is crucial that there is no fundamental change to the concluded contract or framework agreement, as the contracting authority may otherwise be required to conduct a new procurement.

6.2 What is the scope for negotiation with the preferred bidder following the submission of a final tender?

The scope for negotiation with the preferred bidder following the submission of a final tender is limited. The general principle is that the tender should be awarded based on the initial terms submitted, and negotiations are only allowed in specific circumstances.

In general, any negotiation must not result in a material change to the substance of the offer or affect the fairness of the competition.

6.3 To what extent are changes permitted post-contract signature?

Changes made post-contract signature are generally restricted. However, some changes are permitted under specific circumstances:

• Minor modifications: Small, non-substantial changes that do not alter the overall nature or scope of the contract are normally allowed.
• Substantial changes: Significant changes (e.g. changes in price or scope) are only permitted in very exceptional circumstances.

6.4 To what extent does the legislation permit the transfer of a contract to another entity post-contract signature?

Under Danish procurement law, transferring a contract to another entity post-signature is generally not allowed.

7.1 Are there special rules in relation to privatisations and what are the principal issues that arise in relation to them?

Yes, Danish procurement law includes special rules for privatisations.

7.2 Are there special rules in relation to PPPs and what are the principal issues that arise in relation to them?

Yes, Danish procurement law has special rules for Public-Private Partnerships (PPPs).

8.1 Are there any proposals to change the law, and if so, what is the timescale for these and what is their likely impact?

No major or substantial changes are expected in the near future. Minor adjustments have been discussed, but their scope and impact are limited.

8.2 If there are any proposals to change the law, what are the details of some of the most significant changes?

It is proposed to initiate a process to amend the Complaints Board Act to reduce the administrative burden on municipalities and regions in handling complaints.

8.3 Have there been any regulatory developments which are expected to impact the law, and if so, what is the timescale for these and what is their likely impact?

The EU plans to revise the procurement directives in 2026.