Abolishment of the central unit for assessment of self-cleaning measures under the Danish Public Procurement Act
Pursuant to the Section 138(1) of the Danish Public Procurement Act, contracting authorities cannot exclude a tenderer subject to a ground for exclusion, if the tenderer has provided documentation that the tenderer has taken sufficient measures to demonstrate its reliability despite the existence of the ground for exclusion (also called "self-cleaning").
Since 1 January of 2023, contracting authorities have been required to obtain an indicative assessment from a central unit placed with the Danish Competition and Consumer Authority of whether the documentation provided by the tenderer was sufficient to document the tenderer's reliability.
However, as part of the Danish government's plan to reduce ineffective usage of public resources, it has been decided to abolish the central unit for assessment of self-cleaning measures. Instead, contracting authorities must assess by themselves whether a tenderer subject to a ground for exclusion have provided sufficient documentation to demonstrate its reliability.
The amendment enters into force on 1 January 2025 following which date it is no longer possible to request an indicative assessment by the central unit.
Contracting authorities will most likely not experience any differences following the abolishment of the central unit, as it has only provided indicative assessments in 18 cases in 2023 and a similarly low number of cases in 2024.
However, concerns have been raised that the abolishment could entail a loss of legal certainty for the tenderers, as the indicative assessment by the central unit ensured a uniform assessment of documentation of reliability, irrespective of which contracting authority had issued the call for tender. To address this concern, the Danish Competition and Consumer Authority will prepare guidelines based on their experience to assist contracting authorities with the assessment.
Want to know more?
If you have any questions, please contact Plesner's Public Procurement Law team.
Read amendment L 72 (in Danish)