Public contracting authorities are obliged to exclude tender constellations which are considered to be in breach of competition law
Written By
Associate
Denmark
I'm an associate in our international Competition & EU group in Denmark, advising both national and international clients on Danish and EU competition law.
Partner
Denmark
I'm a partner and co-head of our international Competition & EU group. I also lead the Competition & EU team in Denmark. I have a particular focus on applying competition & EU law as a tool to achieve specific and measurable business objectives for our clients.
The Danish Complaints Board for Public Procurement (“Board of Appeal”) has in a recent decision established that a consortium agreement which is in breach of Article 101 TFEU or Article 6 in the Danish Competition Act will be invalid, thus also making the bid and any contracts engaged in by the consortium invalid.
Moreover, the Board of Appeal found that public contracting authorities are obliged to carry out an effective control of whether bidders participating in a consortium infringe Article 101 TFEU or article 6 in the Danish Competition Act. If the investigation shows that the agreement on which the tender is based infringes competition law, the contracting authority will be obliged to reject the bid.
The Board of Appeal found that this obligation persists irrespective of whether the contracting authority has chosen to apply the relevant voluntary exclusion ground in the Danish Public Procurement act which is identical to Article 57(4)(d) in the Public Procurement Directive.
In such situations, where the voluntary exclusion ground is not applied, the Board of Appeal found that this obligation to investigate follow from the principle of equal treatment of economic operators that is provided in the Public Procurement Directive.
However, a more secure basis for the suspicion of the existence of a competition law infringement must be found, for this obligation to investigate to exist, when the voluntary exclusion ground has not been applied according to the Board of Appeals.
In the specific matter at hand, the board of appeals did, however, find that no such infringement of competition law was likely to exist. The contracting authority therefore did not have to investigate this matter further to award the contract.
For further information, please refer to the decision by the Board of Appeals available in Danish here.
For more information please contact Morten Nissen or Alexander Brøchner.
