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EU Public Procurement Law 2010 – Chapter 7, Award of Orders - Anders Birkelund Nielsen

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Where are we?

• Aim and principles (chapter 1)• Contracting authorities (chapter 2)• Contracts subject to the Procurement Directive (chapter 3)• The Contract Documents (chapter 4)• The Procurement Procedures (chapter 5)• Selection of Participants (chapter 6)• Award of Orders and Conclusion of Contracts (chapter 7)• Non-economic criteria in the procurement procedures (chapter 4)• Enforcement (chapter 8)

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Award of OrdersGeneral remarks on award of orders:• The contracting authority must choose between the two main award criteria• Orders must be awarded in accordance with the Community principles, including

• The principle of transparency• The principle of equal treatment

• The contract documents, i.e. the published materials, must form the basis of the contracting authority’s decision on the award of the order.

• Applies both sub-criteria and secondary criteria to such sub-criteria• Requirements in the material must be suited to enable the contracting

authority to make an objective evaluation of the tenders• The contracting authority must comply with the specified procedures• Limited access to amend conditions/descriptions in the tender material

• The Procurement Directive’s rules on award of orders can be found in art. 53-55 (and recital 46-47 of the preamble)

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Award of OrdersGeneral remarks on award of orders:• The award criteria in the Procurement Directive are primarily economical (lowest

price or most economically advantageous tender), however, it is possible to choose non economical sub-criteria, cf. e.g. C-513/99, Concordia

• The choice of award criterion must be published in the contract notice (art. 36, cf. appendix VII), but the contracting authority can inform tenderers of sub-criteria at a later state

• Objectivity requirement (The preamble recital 46)• Must be suited to settle the competition. Requirement as to (i) connection with the

subject matter of the contract and (ii) relativity• Requirement as to precise wording in accordance with the Procurement Directive’s

rules when stating the award criterion, i.e. no synonyms (KLFU, 2 May 2000, Uniqsoft against the municipality of Odense)

• Art 53 (1): ”…either [..] the tender most economically advantageous […] or the lowest price only”

• As a starting point the choice of award criterion is optional for the contracting authority.

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Award of Orders”The lowest price only”:• One, and only one, competitive parameter• As a starting point this award criterion is simpler for the contracting

authority and offers more transparency for the tenderers• The price can be evaluated in the aggregate based on various elements

such as the price itself, service, spare parts, environmental costs etc.• Usually only chosen as the award criterion if (i) the products or services

are relatively straight forward and/or (ii) the products or services are very thoroughly described in the contract documents (a lot of minimum requirements and/or contractual terms)

• Eg. purchase of transport services with fixed minimum requirements or purchase of thoroughly described goods

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Award of OrdersThe most economically advantageous tender:• ”Without prejudice to [national regulations] the criteria on which the

contracting authorities shall base the award of public contracts shall be either:

(a) when the award is made to the tender most economically advantageous from the point of view of the contracting authority, various criteria linked to the subject-matter of the public contract in question, for example, quality, price, technical merit, aesthetic and functional characteristics, environmental characteristics, running costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion” (art. 53 (1))

• The mentioned sub-criteria are not exhaustive (eg. social considerations)• Described in recital 46 of the preamble

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Award of OrdersThe most economically advantageous tender:• Sub-criteria:

• Must be published (no later than) in the specifications to tenderers• Must be linked to the object of the contract; clear (comprehensible);

and as a starting point concrete and objective (not discretionary)• No minimum and/or maximum limitations for sub-criteria; and it is

very common to use secondary criteria to explain the sub-criteria• The contracting authority must analyze the sub-criteria consistently

throughout the tender procedure and when evaluating the tenders

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Award of OrdersThe most economically advantageous tender:• Sub-criteria (continued)

• Sub-criteria, which are less objective, must be complemented with secondary (sub-) criteria, describing what the contracting authority will include in the evaluation, e.g. ”esthetics” and ”design”

• It is possible to include non-economic criteria (environmental- and/or social criteria), e.g. emissions, noise etc.

• Must be linked to the subject matter of the contract• Must not give contracting authority an unconditional discretionary

access to award the order• Must be stated explicitly in the contract documents• Must comply with basic Community principles• Must be suited to identify the most economically advantageous tender

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Award of OrdersThe most economically advantageous tender:C-448/01, EVN AG and Weinstrom GmbHFacts:• Tender procedure regarding supply of electricity• The most economically advantageous tender

• ”Price” (weight 55 %)• ”Energy from renewable energy sources” (weight 45 %)

• A long list of alleged infringements of the public procurement rules

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Award of OrdersThe most economically advantageous tender:C-448/01, EVN AG and Weinstrom GmbH• The Court:• ”provided that they comply with the requirements of Community law, contracting

authorities are free not only to choose the criteria for awarding the contract but also to determine the weighting of such criteria, provided that the weighting enables an overall evaluation to be made of the criteria applied in order to identify the most economically advantageous tender” (par. 39)

• ”an award criterion which is not accompanied by requirements which permit the information provided by the tenderers to be effectively verified is contrary to the principles of Community law in the field of public procurement” (par. 52)

• ”An award criterion that relates solely to the amount of electricity produced from renewable energy sources in excess of the expected annual consumption , […], cannot be regarded as linked to the subject-matter of the contract” (par. 68)

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Award of OrdersThe most economically advantageous tender:• Weighting of sub-criteria

• “…in the case referred to in paragraph 1(a) the contracting authority shall specify […] the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender.” (art. 53 (2), paragraph 1)

• E.g.: Price 50 %, Quality 30 %, Delivery time 20 %• In principle no minimum or maximum limit for a criterion’s weighting

(E.g.: Price 95 %, Delivery time 5 %).• “Those weightings can be expressed by providing for a range with an

appropriate maximum spread.” (art. 53 (2), paragraph 2)• “Where […] weighting is not possible […] the contracting authority shall

indicate […] the criteria in descending order of importance.” (art. 53 (2), paragraph 3)

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Award of OrdersThe most economically advantageous tender:• Weighting of sub-criteria (continued)

• The public directive does not state how the “range” can be set or applied• The Danish Competition Authority’s guidelines for the public procurement directive:

• “It must be assumed that there is a limit to how wide of a range that can be applied. If the range become too wide, it will not be clear to the tenderers what is important, just as the contracting authority is getting too much freedom. A range of ± 10 % points may be assumed to be the maximum. On the other hand, the frames must have a certain size – ranges down to ± 1 % does not have the intended effect”.

• “The ranges do not have to be alike for all sub-criteria, and some sub-criteria can be stated without a range. […] However, the total applied weighting must always be 100 %, just as the contracting authority must apply the same weighting in the assessment of all tenders”.

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Award of OrdersThe most economically advantageous tender:• Weighting of sub-criteria (continued)

• The Danish Competition Authority’s guidelines for the public procurement directive:• ”The Danish Competition Authority assesses that the contracting authority can

decide what combination to be used in the granting of the contract. The consequence of applying ranges for sub-criteria is that the contracting authority gets a certain flexibility to choose between the tenders within the determined frames. […].”

• Neither the European Court nor the Commission has decided on how the possibility of stating ranges can/is to be applied.

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Award of OrdersThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 2 May 2006, ”Danske Arkitektvirksomheder v. Albertslund Boligselskab og Vridsløselille

Andelsboligforening”

Facts:• The contracting authority had specified the weighting of the sub-criteria

price, quality and process/organization with ranges of 30-50 %, 30-50 % and 10-30 %

• The Complaints Board decided ex officio to assess whether this could be considered to be a range with an appropriate maximum spread.

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Award of OrdersThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 2 May, 2006The Complaints Board:• ”According to article 53 (2) of the public procurement directive, in tender

procedures with the award criterion “the most economically advantageous tender”, the contracting authorities must inform how the sub-criteria will “relatively” be weighted, and this weighting can be stated “by determining a range with an appropriate maximum spread”. Only when the contracting authority does not think that a weighting can be made […], the sub-criteria can instead be stated in order of priority […]”.

• “Compared to the directives which the public procurement directive replaces the new requirement is more strict as according to the previous applicable rules it was sufficient that the contemplated sub-criteria were stated as far as possible according to their attached importance, with the most important first”.

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Award of OrdersThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 2 May, 2006The Complaints Board:• ”The defendants have stated in the specifications to tenderers that the three sub-

criteria weigh 30-50 %, 30-50 % and 10-30 % respectively. In the final evaluation, the sub-criteria were weighted by 30 %, 50 % and 20 % respectively. Thus, the information in the specifications to tenderers is less informative than if the defendants had chosen just to state the sub-criteria in order of priority. In any case, under these circumstances the applied weighting is contrary to the principle of transparency which is enshrined in article 53 (2) of the public procurement directive.”

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Award of OrdersThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 4 August 2009, Mölnlycke Health

Care Aps v. Region HovedstadenThe Complaints Board (majority):• ”It cannot be concluded from article 53 (2), paragraph 1 and 2, that an in advance indicated

order of priority has to be binding.”The Complaints Board (dissent):• ”In article 53 (2) the contracting authorities are ordered to determine how the determined sub-

criteria are weighted during the assessment […] and this rule may be considered a continuation of the previous rule. However, the rule is now obligatory so that weighting is always to be made. With the new rule, the requirement of “relative weighting" was modified to the effect that the contracting authority may determine a range rather than a certain percentage”.

• ”As the new changed rules [….] are intended to strengthen the requirements with regards to the information which the contracting authorities are to give the tenderers, they may be interpreted as not weakening the situation for the tenderers compared to the situation according to the previous applicable rules.”

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Award of OrdersThe most economically advantageous tender:• Evaluation models and point allocation

• In most cases the contracting authority (for practical reasons) has to apply an evaluation model when assessing the received tenders (especially due to the weighting requirement)

• However, the contracting authority is not required by law to apply evaluation models, see The Danish Complaints Board for Public Procurement 4/8-09, Mölnlycke mod Region Hovedstaden.

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Award of OrdersThe most economically advantageous tender:• Application Evaluation models and point allocation

• There is a number of decisions from the complaints board• How are the decisions to be interpreted?• How are the point models to be applied now?

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Award of OrdersThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 12 February

2007, Dansk Høreteknik v. Københavns KommuneFacts:• Public tender of supply contract for hearing aid appliances• The most economically advantageous tender on the basis of price, quality

and service • The Complaints Board is referring to The Danish Competition Authority’s

statement on legal aspects given prior to the case

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Award of OrdersThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision 12 February

2007, Dansk Høre Teknik v. Københavns KommuneThe Danish Competition Authority:• Tenders are to be assessed separately according the award criteria• Tenders are to get points according to the fulfilment of sub-criteria and

not according to the way the tender compares to other tenders• The best tender is not necessarily entitled to maximum pointsThe Danish Complaints Board for Public Procurement:• The Complaints Board supported the statement of the Danish Competition

Authority – in any case as with regards to qualitative sub-criteria, that is sub-criteria other than price

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Award of Orders

Example of the importance of allocation of points:

”Maximum” Price Quality Service Total points

Tender A 10 10 6 26

Tender B 7 10 10 27

”Actual” Price Quality Service Total points

Tender A 10 5 3 18

Tender B 7 5 5 17

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Award of OrdersExample of the importance of allocation of points:

”Maximum” Price Quality Service Total points

Tender A 10 10 6 26Tender B 7 10 10 27

”Actual” Price Quality Service Total points

Tender A 10 5 3 18Tender B 7 5 5 17

”Actual 2” Price Quality Service Total points

Tender A 5 5 3 13Tender B 3,5 5 5 13,5Tender C 10 0 0 10

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Award of OrdersThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 29 August

2007, Sectra v. Region SyddanmarkFacts:• Public tender of a contract regarding supply of a complicated it system for

hospitals• The most economically advantageous tender on the basis of the sub-

criteria functionality and user-friendliness, acquisition economy, maintenance economy, IT system and design and possibilities of development

• The tenderers (five in total) were granted 5, 4, 3, 2 and 1 point in each category.

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Award of Orders

The most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 29 August

2007, Sectra v. Region SyddanmarkThe Complaints Board:• ”the defendant has not assessed each tender separately according to the

sub- criteria”• ”this model does not take into account situations in which no tenders are

entitled to maximum points”• ”this model is contrary to article 2 of the public procurement directive as

the tenders are assessed in comparison with each other”• Note! The Complaints Board did not distinguish between the various sub-

criteria, neither “price criteria” nor “other criteria”

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Award of OrdersThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 7 November

2007, SJ v. Public Transport AuthorityFacts:

• The Public Transport Authority’s tender procedure regarding railway services on “Kystbanen” between Elsinore and Sweden

• Was related to services included in annex II B and therefore “regulated” under the common principles in the Treaty, including the non-discrimination principle

• The evaluation model resulted in the tenders being assessed in comparison with each other as for the sub-criteria “price”

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Award of Orders

The most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 7 November

2007, SJ v. Public Transport AuthorityThe Complaints Board:• ”The Complaints Board has not decided whether it is appropriate – or even

required – in the specifications to tenderers to state under which conditions tenders will be granted maximum points and granted 0 points”

• ”the model for awarding points in relation to the sub-criterion price may in extreme cases lead to results which objectively may be inappropriate and definitely are unclear for the tenderers…”

• ”…but in normal cases – and probably most often in practice - it is un-problematic identifying the most economically advantageous tender by use of this model”

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Award of OrdersThe most economically advantageous tender:How to understand the decisions• The Complaints Board’s decisions (summarized):

• As for qualitative criteria (anything else than price), a tender cannot be assessed based on how it compares with other tenders

• The most favourable tender (under a given sub-criteria) is not to be awarded maximum points unless the contracting authority could not (fairly) have imagined a better solution

• The tenders may – in principle - be assessed according to each other as for the sub-criteria regarding price

• However, a relative assessment of the tenders – as for the sub-criteria regarding price – can be an infringement of Community Law if it has a concrete relevance for the outcome of the competition

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Award of OrdersThe most economically advantageous tender:• The use of selection criteria as (award) sub-criteria

• Sub-criteria (to the award criterion the most economically advantageous tender”) and the selection/qualification criteria are related to two different elements (points of time) in a tender procedure

• As a starting point (award) sub-criteria is not to relate to the tenderers’ qualifications (abilities) and selection criteria cannot be used/reused as (award) sub-criteria

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Award of Orders IIThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision 13 September

2005, Navigent v. ArbejdsmarkedsstyrelsenFacts:• An eliminated tenderer complained that the contracting authority had

applied the sub-criteria “CVs as for proposed employees’ concrete experience with similar or comparable assignments”.

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Award of Orders IIThe most economically advantageous tender:The Danish Complaints Board for Public Procurement, decision of 13

September 2005, Navigent v. ArbejdsmarkedsstyrelsenThe Complaints Board:• ”As stated in the Complaints Board’s decision of 2 May 2000, Uniqsoft

1998 Aps v. Odense Kommune, the EU procurement rules do not preclude a matter – that in the contract notice is stated as a qualification condition – from serving as both a minimum condition for prequalification and a sub-criteria related to the award of the contract …”

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Award of Orders IIThe most economically advantageous tender:ECJ judgment: C-315/01, GATFacts:• Procurement of goods under the old supply directive.• “…the call for tenders at issue […] specified that in order to evaluate the

tenders so as to determine which offer was the most economically advantageous the contracting authority had to take account of the number of references relating to the product offered by the tenderers to other customers, without considering whether the customers' experiences of the products purchased had been good or bad.”

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Award of Orders IIThe most economically advantageous tender:ECJ judgment: C-315/01, GATECJ:• ”submission of a list of the principal deliveries effected in the past three

years, stating the sums, dates […] involved is expressly included among the references or evidence which […] may be required to establish the suppliers' technical capacity.” (par. 65)

• Furthermore, a simple list of references […] which contains only the names and number of the suppliers' previous customers without other details relating to the deliveries effected to those customers cannot provide any information to identify the offer which is the most economically advantageous […] and therefore cannot in any event constitute an award criterion […]” (par. 66)

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Award of Orders IIThe most economically advantageous tender:ECJ judgment: C-315/01, GAT ECJ:• ” In the light of the foregoing considerations [the supply directive]

precludes the contracting authority, in a procedure to award a public supply contract, from taking account of the number of references relating to the products offered by the tenderers to other customers not as a criterion for establishing their suitability for carrying out the contract but as a criterion for awarding the contract.” (par. 67)

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Award of Orders IIThe most economically advantageous tender:ECJ judgment of 24 January 2008, C-532/06, Lianakis Facts:• Case on award of contract under the former procurement directive on

services• Tenderers’ experiences and general abilities to perform the services within

the scheduled time were amongst the sub-criteria• ”The contract notice referred to the award criteria in order of priority:

(1) the proven experience of the expert on projects carried out over the last three years; (2) the firm’s manpower and equipment; and (3) the ability to complete the project by the anticipated deadline, together with the firm’s commitments and its professional potential.” (par. 10)

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Award of Orders IIThe most economically advantageous tender:ECJ judgment of 24 January 2008, C-532/06, Lianakis ECJ:• ”The suitability of tenderers is to be checked by the authorities awarding

contracts in accordance with the criteria of economic and financial standing and of technical capability (the ‘qualitative selection criteria’) referred to in Articles 31 and 32 […].” (par. 27)

• ”By contrast, the award of contracts is based on the criteria set out in Article 36(1) of Directive 92/50, namely, the lowest price or the economically most advantageous tender […].” (par. 28)

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Award of Orders IIThe most economically advantageous tender:ECJ judgment of 24 January 2008, C-532/06, Lianakis ECJ:• ”However, although in the latter case Article 36(1) of Directive 92/50 does

not set out an exhaustive list of the criteria which may be chosen by the contracting authorities, and therefore leaves it open to the authorities awarding contracts to select the criteria on which they propose to base their award of the contract, their choice is nevertheless limited to criteria aimed at identifying the tender which is economically the most advantageous[…].” (par. 29)

• ”Therefore, ‘award criteria’ do not include criteria that are not aimed at identifying the tender which is economically the most advantageous, but are instead essentially linked to the evaluation of the tenderers’ ability to perform the contract in question.” (par. 30)

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Award of Orders IIThe most economically advantageous tender:ECJ judgment of 24 January 2008, C-532/06, Lianakis ECJ:• ”In the case in the main proceedings, however, the criteria selected as

‘award criteria’ by the contracting authority relate principally to the experience, qualifications and means of ensuring proper performance of the contract in question. Those are criteria which concern the tenderers’ suitability to perform the contract and which therefore do not have the status of ‘award criteria’ […] ” (par. 31)

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Award of Orders IIThe most economically advantageous tender:ECJ judgment of 24 January 2008, C-532/06, Lianakis ECJ:• “Consequently, it must be held that, in a tendering procedure, a

contracting authority is precluded […] from taking into account as ‘award criteria’ rather than as ‘qualitative selection criteria’ the tenderers’ experience, manpower and equipment, or their ability to perform the contract by the anticipated deadline.” (par. 32)

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Award of Orders IIThe most economically advantageous tender:Use of selection criteria as (award) sub-criteria• Probably still legal if a number of conditions are fulfilled:

• There must be a clear connection to the subject-matter of the contract• The criteria must be targeted towards the services to be performed• The criteria must be suited to identify the most economically advantageous

tender• There use of the criteria must be separate from the use in relation to the

qualification assessment itself (not just renewed use)• Requirements with regards to the persons involved must be stated in the

contract – and the specific employees must perform the contract• Examples

• Specific personal qualifications• Architect services, lawyer services and other specialists

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Award of Orders IIAward and signing of contract:• Simultaneous information to all tenderers regarding the outcome of the

competition/tender (article 41(1) ”as soon as possible”)• Standstill period (and information to tenderers)

• Executive order no. 588 of 12 June 2006 regarding amendments to executive order no. 937 of 16 September 2004 (the implementation order)

• ”Information to all applicants and tenderers must be given simultaneously and must be forwarded by the fastest way of communication possible” (S. 6(a)(2))

• ”Contracts signed in succession of a tender procedure under the public procurement directive are to be signed no sooner than 10 days after forwarding the information in S. 6(a)…” (S. 6(b)(1))

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Award of Orders IIAward and signing of contract:• Standstill period (continued)

• The Danish Act on Complaints Board for Public Procurement (statute no. 415 of 31 May 2000 amended by statue no. 538 of 8 June 2006 and statute no. 572 of 6 June 2007)

• When complaints within the standstill period include a request for suspensive effect, a new standstill period begins in which the contracting authority is not to sign any contract (S. 6(a)(1))

• The Complaints Board then has a maximum of 10 working days to make a decision on whether the complaint is to be granted delaying effect (S. 6(a)(2))

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Award of Orders IIAward and signing of contract:• If a contracting authority has notified the tenderers of the award decision, it may

(probably) not reverse that decision without a new tender procedure, see the Danish Complaints Board for Public Procurement, decision of 4 August 2009, Mölnlycke Health Care ApS vs. Region Hovedstaden

• This decision has been criticized.

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Award of Orders IIThe contracting authority’s cancellation of a tender procedure:• ”Cancellation” can occur even after the award of the contract however, the

contract cannot be ”annulled” so the contract award must be ”worded correctly”• Are objective reasons required?

• Obligation to inform and substantiate• ”Contracting authorities shall as soon as possible inform candidates and

tenderers of decisions reached […], including the grounds for any decision not to […] award a contract for which there has been a call for competition …” (art. 41(1))

• This obligation to inform has been construed by the Complaints Board as a requirement for an objective reason to cancel the procedure

• Cancellation does not require special reasons or exceptions, the European Court of Justice, C-27/98, Metalmeccanica

• Thus cancellation is probably legal as long as the contracting authority does not serve subjective (irrelevant) considerations (cancellation must not violate the non-discrimination principle)

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Award of Orders IICancellation of tender:• A cancellation is objective and justified if

• The contracting authority does not receive any qualified tenders• (Negotiation with/without previous contract notice is possible, see art.,

30(1)(a) and art. 31 (1)(a))• The offered prices are too high (assessed on the basis of ”internal indicative

tender” or the budget available)• There is inadequate competition (e.g. only one tender)• The contracting authority has made a mistake in connection with the tender

procedure• Probably possible to cancel a part of a tender in some cases• Cancellation procedure

• Non-subjective reason + Information to the participating companies (art. 41(1)) + Preparation of report regarding the tender (art. 43) + Information to the publications office (by using a standard form)

• The contracting authority may start all over if a new tender procedure is initiated!

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Tildeling af ordrer IIObligation to substantiate (give reasons):• The obligation aims to contribute to objectivity, create transparency for the

tenderers (ensure compliance with the non-discrimination principle) and enable the tenderers to complain → Promotes competition

• Obligation to inform (regarding the competition result) follows from article 41 (1) • The public procurement directive only requires substantiation/reasoning if the

applicants or tenderers request it, see article 41 (2) (or cancellation, article 41 (1))• Such reasons must be specific (why not prequalified, why was the tender non-

compliant, why was another tender better?) • Reasons must be given within 15 days from request

• Executive order no. 588 of 12 June 2006 on change of executive order no. 937 of 16 September 2004 – Obligatory obligation to substantiate/give reasons

• “The information must at least contain a summery substantiation for the made decision.” (section 6 a(3))

• Obligation to publish a contract notice (standard form) on the concluded contract no later than 48 days after the signing of the contract. (article 35 (4))

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Award of Orders IISubmission and receipt of tenders etc.:• Requirements as to form• Non-disclosure/confidentiality• Abnormally low tenders• Irregular tenders and reservations• The room for technical clarifications (of unclear elements in tenders)

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Award of Orders IICheck questions:• When is the award criterion to be published?• When is the award criterion ”lowest price” most suitable?• Which – and how many – sub-criteria can be set for the award criterion ”the most

economically advantageous tender”?• Which ”ranges” can be set in relation to weighting of sub-criteria?• Which demands can be made with regards to the tender?• Is the contracting authority allowed to postpone the tender deadline?• Is a tenderer or contracting authority able to avoid that others get insight in the

submitted tenders?• What is the contracting authority expected to do if a tender contains a very low

price?• When can a tender be rejected?• Which ways of clarification of tender documents and tenders can take place?• When can the tender be cancelled?