The Use of the Competitive Dialogue in Denmark
Steen Treumer
Professor, Ph.D.
University of Copenhagen
Presentation in the PLA event on Competitive Dialogue and the
Procurement of Major Contracts
27th October 2011, London
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1. Introduction
•
The Danish legislator has implemented the procedure
without deviations from the wording of the Public
Sector Directive
•
The competitive dialogue procedure is perceived as an
exception with a limited scope of application
•
However, there has been a relatively high number of
competitive dialogue procedures in Denmark
•
There is Danish case law on competitive dialogue of
general interest (national case law on the issue is
very limited in the other Member States)
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2. The background for the Danish interpretation of
the scope of the procedure
The Danish approach in general
The interpretation of the ban on negotiations
A very transparent Danish market with alert
competitors
An extremely efficient enforcement system
compared to many others national regimes
Restrictive interpretation of the field of application
in legal theory
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2.1 Danish case law on the field of appliation of
competitive dialogue
Selected case law:
Ruling of 8th January 2008, WAP Wöhr
Automatikparksysteme Gmbh & Co KG v
Ørestadsparking A/S, from the Danish
Complaints Board for Public Procurement
• The use was considered justified, rejection of a
literal interpretation of recital 31, emphasis on
the lack of national experiences with similar
works and on the discretion of the contracting
authority
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2.2 Danish case law on the field of appliation of
competitive dialogue
Ruling of 14th April 2008, Damm Celluar
Systems A/S v Økonomistyrelsen, from the
Danish Complaints Board (the case is
pending before the Supreme Court on
appeal)
• The use was not considered justified,
restrictive interpretation with emphasis on
the wording of recital 31, the President of
the Board was overruled by two other
members of the Board
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2.3 Danish case law on the field of appliation of
competitive dialogue
Ruling of 1st November 2010, P-Nordic
against Aalborg Kommune, from the
Danish Complaints Board
• The use was not considered justified, it
was again emphasized that the contracting
authorities only have limited discretion in
this respect, remarks on the burden of
proof, importance of the approach of other
contracting authorities for similar
contracts
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3. Selected issues on the operation of competitive
dialogue
The dominant Danish model of organizing the
dialogue is a sort of hybrid between the
”own solutions model” and the ”common
specifications model”
Implications for confidentiality of information
and solutions? Lack of case-law
Can the contracting authority insert a tender
condition that ensures the right to ”cherry
picking (acceptance of this is perceived as
a condition for participation in the
procedure)?
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3.1 Selected issues on the operation of
competitive dialogue
Number of applicants, qualified applicants,
”shortlisted” participants, final bids
• Can you only eliminate solutions or also
participants? Practice
Change/development of the award criteria is
occassionally seen in Danish practice
Many contracting authorities allow variant
bids
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4. Danish Procurement Practice in the field
• Payments for costs of participation
• Limited number of PPP’s in Denmark but the
procedure has been applied in several of these
• Danish contracting authorities have a very
positive assessment of the procedure and they
frequently recommend the use of it to others
• Some tenderers are not quite as entusiastic
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5. A couple of references to recent literature
Sue Arrowsmith & Steen Treumer (eds.), ”Competitive
Dialogue in EU Procurement”, Cambridge University
Press (forthcoming).
•
A comparative work based on the experiences in 10
Member States including United Kingdom, France and
Germany
Steen Treumer & François Lichère (eds.), ”Enforcement
of the EU Public Procurement Rules”, DJØF Publishing
2011.
•
A comparative work based on the experiences in
several Member States incl. UK, France and Germany
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The Use of the Competitive Dialogue in Denmark