The Use of the Competitive Dialogue in Denmark

1. 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

2. 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)

3. 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

4. 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

5. 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

6. 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

7. 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)?

8. 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

9. 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

10. 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