Public procurement

We advise all types of contracting authorities throughout the procurement process – from market dialogue before launch of procurement process, choice of procurement strategy, drafting of procurement documents, the procurement process itself and, if necessary, in connection with requests for access to documents and complaints before the Complaints Board for Public Procurement and litigation before the courts.

We also advise on subsequent contract management, including the possibility of lawfully making changes to the contracts awarded.

We have profound expertise in the Public Procurement Act, the EU Utilities Directive and the Tender Act, and our clients include regions, municipalities, utility companies, social housing organisations and others.

Procurement strategy and process

We advise on the choice of procurement strategy, including how to optimise competition and choose the procedure which is best suited. Furthermore, we advise on all aspects of the practical planning and conduct of the procurement process. We assist in the drafting and publication of the procurement notice and tender conditions, and we advise on the choice of selection criteria, award criteria, evaluation model, etc.

Our advice also includes the review and evaluation of prequalification applications and tenders, and we advise our clients on their options for negotiating with the tenderers and on the formation and subsequent management of the contract.

We have extensive experience in handling the entire procurement process on behalf of contracting authorities. We have in-depth experience in advising clients on procurement projects which are particularly complex, e.g. because of the choice of procedure or the nature of the products or services in question. Examples of particularly complex projects include major construction and engineering projects, strategic partnerships, infrastructure projects, PPP/PPC projects and innovative contracts.

Complaints and litigation

We have extensive experience of representing contracting authorities before the Complaints Board for Public Procurement and the courts. Time is often of the essence, and complaints and lawsuits may significantly delay and increase the cost of procurement projects, especially if the project is suspended pending a decision.

Complaints – and lawsuits – are also expensive in their own right. We therefore always start out by making a thorough assessment of the litigation risk. If there are no prospects of winning the case, it may be advisable in terms of money and time to cancel the procurement process or attempt to settle the case.

Complaints and lawsuits are handled by lawyers having extensive experience of dispute resolution and litigation. Naturally, we keep the contracting authority closely informed of the status of a given case, and all cases are handled in close cooperation with the contracting authority.

Avoiding complaints

A procurement process may be complex, and sometimes the procurement rules are violated, whether intentionally or not. It may therefore be a good investment to join forces with a legal advisor. Our lawyers advise on the pitfalls and contribute to ensuring that the procedure is completed with the necessary respect for the tenderers and in accordance with the law so as to minimise the risk of complaints.

This first piece of advice is free: Make sure that you document the procurement process and the decisions made throughout the process.

We advise suppliers of all sizes through the many stages of procurement, on issues such as participation in technical dialogue prior to the launch of the procurement process, the drafting of prequalification applications, the risks associated with the contracts involved, preparation and optimisation of tenders, compliance checks of applications and tenders, requests for access to documents and evaluation of material received as well as complaints before the Complaints Board for Public Procurement.

In addition, we advise on the legal framework for the submission of tenders, including the formation of companies in connection with public-sector projects.

Our experience and expertise ensure that tenderers always receive professional, commercially oriented and straightforward top-level specialist advice.

As a global law firm with a large number of practice areas and offices in more than 50 countries, we are the only law firm providing legal services in the entire Nordic region. On the basis of our extensive network, we are able to tailor our legal services to the client's industry and the task at hand.

EU procurement

In general, contracts for the purchase of products, services or construction and engineering works exceeding the so-called EU procurement thresholds are subject to the provisions of the Public Procurement Act. The thresholds are adjusted every two years. For more details about the thresholds for 2018-2019, please click here.

Utility companies

Special rules apply to EU procurement in the utilities sector (i.e. energy, electricity, water, heating, certain transport services, etc.). Contracts for the purchase of products, services or construction and engineering works exceeding the EU procurement thresholds are subject to the provisions of the EU Utilities Directive. The Directive applies to both public and private utility companies.

EU procurement notices must be published in TED (Tenders Electronic Daily), which is the online version of the Supplement to the Official Journal of the European Union.

Purchasing below the thresholds

Contracts for the purchase of products and services which fall below the EU procurement thresholds but have a clear cross-border interest are subject to Part IV of the Public Procurement Act, which means, among other things, that the procurement notice must be published on the Danish website udbud.dk. A contract only has a clear cross-border interest if a supplier in another EU member state may potentially be interested in bidding.

If the contract does not have a clear cross-border interest, but covers products or services of an estimated value of DKK 500,000 or more, it must be awarded at arm's length in accordance with Part V of the Public Procurement Act.

Contracts for the purchase of construction and engineering works falling below the EU procurement thresholds are subject to the Tender Act, whether in the form of competitive bidding or informal bids, depending on the value.

For a list of the thresholds and relevant sets of rules, please click here (link to PDF).

Before launching the procurement process, it is important to choose the right procurement procedure. At DLA Piper, we can guide you through this process and help you choose the right procurement procedure for your contract.

All procurement procedures have their own pros and cons and, therefore, no size fits all. As a result, the choice depends on the nature and complexity of the products or services, the time-frame involved, the market supplying the products or services and the circumstances and requirements of the contracting authority. For a description of the most common types of procurement procedures, see below.

Public procurement & restricted procedure

The most common types of procurement procedures are public procurement and restricted procedure. Those procedures can always be chosen.

In the case of public procurement, all interested suppliers may submit a tender.

Under the restricted procedure, however, interested suppliers must apply to participate in the process, but only those selected by the contracting authority will be invited to submit a tender. The restricted procedure is thus particularly suitable in situations where the contracting authority is looking at a market with many different suppliers as the contracting authority may then limit the number of tenders to be evaluated.

Negotiated procedure

The negotiated procedure is a flexible procedure, which also includes an initial selection of suitable tenderers. Under this procedure, the contracting authority is also entitled to negotiate with the selected tenderers after submission of their tenders. Following negotiations, the tenderers each submit an updated tender. The negotiated procedure is thus suitable in situations where the contracting authority needs to examine which solutions will meet its needs, and it is thus most often used to purchase products or services of some complexity.

The scope for using the negotiated procedure has been widened after the Public Procurement Act entered into force, but its use is still subject to various conditions. As regards public procurement under the EU Utilities Directive, however, contracting authorities are free to use the negotiated procedure.

Innovation partnership procedure

The innovation partnership procedure is a relatively new procurement procedure, which was introduced with the Public Procurement Act in 2016. This procedure is quite flexible and makes it possible to enter into one or more long-term innovation partnership contracts for the purpose of developing and subsequently buying innovative products, services or construction and engineering works without having to put out the entire contract to tender.

An innovation partnership procedure is initiated by the selection of a number of suitable suppliers, and the contracting authority then negotiates with the suppliers concerning the terms of the partnership. After the negotiations, one or more innovative partnership contracts are awarded to the successful supplier(s). Then, the innovation process begins.

The innovation partnership procedure is particularly suitable in situations where no solutions meeting the contracting authority's needs are available in the market, and therefore the contracting authority wants to develop a solution which is not already available in the market.

Competitive dialogue and design contest

The competitive dialogue procedure is a procurement procedure which enables the contracting authority to have an initial dialogue or negotiate with prequalified suppliers on potential solutions before tenders are submitted. This procedure is complex and cost-intensive, and it is therefore used relatively rarely and most often only for large-scale and complex supplies.

Design contests are widely used for architectural design and urban planning, and the contestants usually compete on their ideas. The winner is selected by a jury. As a general rule, the contracting authority is not required to award a contract and is entitled to negotiate with the contestants.

A framework agreement is a form of contract. It is used in the case of repetitive purchases by one or more contracting authorities on the one hand and one or more suppliers on the other hand, and the contracting authority is not required to take a specific volume or value of business under the framework agreement.

A dynamic purchasing system is like an open framework agreement and may serve as an alternative to a framework agreement. The system is an electronic procurement procedure where the contracting authority creates a list of potential suppliers of the products or services in question. When a specific purchase is to be made, the potential suppliers on the list compete with each other.

An assortment tender is a procedure where a framework agreement is concluded for large-scale supplies within the same field, e.g. contracts for food, toys, furniture as well as nursing and hospital equipment.

It is a challenge to manage an assortment tender. The risk of non-compliant tenders, cancellations and complaints is greater than for less complicated procedures.

Public procurement law operates with a number of fundamental principles: the principles of equal treatment, proportionality and transparency.

Principle of equal treatment

The principle of equal treatment is one of the cornerstones of procurement law, and it is thus imperative that contracting authorities comply with this principle. The principle of equal treatment means that differential treatment of applicants and tenderers is only allowed if justified by objective reasons.

However, the principle of equal treatment does not mean that all terms of the procurement documents must be competition neutral for all market participants. Accordingly, the contracting authority is not required to relax requirements just because only a few suppliers can meet them.

Principle of transparency

The principle of transparency requires openness about and insight into public contracts. In practice, it means that the contracting authority must publish a procurement notice in accordance with the public procurement rules. The principle of transparency also means that the contracting authority must stick to the procedure laid down in the procurement documents.