After the coming into force of the Procurement Act, the ESPD has given rise to special challenges both for the applicants/tenderers and the contracting entities. Below, we will give our views on how some of these challenges may best be solved.

The ESPD must be used by applicants and tenderers participating in public procurement procedures. The contracting entity must demand that the applicants/tenderers use the ESPD as a preliminary proof

1. that the applicant/tenderer is not subject to exclusion; 2. that the applicant/tenderer meets the minimum requirements concerning qualifications; and
3. if relevant, how the applicant/tenderer will meet the objective and non-discriminating selection criteria.

The purpose of the mandatory use of the ESPD is to limit the burdens in relation to the participation in a tender procedure as the ESPD implies that the applicant/tenderer is not, initially, to produce a large number of certificates and documents.

For a general review of how to fill out the ESPD, please see the Danish Competition and Consumer Authority's guideline on www.en.kfst.dk.

Based on the first practical experiences with the ESPD, we will review selected issues below which we believe should have special attention when using the ESPD:

i. The new ESPD must be used in connection with tender procedures covered by the Procurement Act, the Utilities Directive and the Concession Directive.

However, this only applies to "general tender procedures" (public tender procedure, restricted procedure, negotiated procedure, competitive dialogue or Innovation partnership. There is therefore no requirement that you use the ESPD in connection with "light" tender procedure or procedures below the limits of the Public Procurement Directive. You are also not obligated to use the ESPD in connection with tender procedures under the Tender Act.

ii. It is new to both the contracting entity and the applicant/tenderer to use the ESPD.

It is therefore useful that all parties make an effort to ensure that the ESPD is filled out correctly.

As regards public contracting entities, there may always be applicants/tenderers that are participating in a public tender procedure for the first time. It is therefore always relevant to consider whether you can make the procedure more easy by guiding or referring to the guidelines.

At the same time, it can be an advantage to render probable to the applicants/tenderers which sections in the ESPD to fill out for instance by describing this in the contract notice or the tender documents. And the applicants/tenderers should ask any relevant questions if the contracting authority's documentation dives rise to any doubt as to the filling out of the ESPD.

iii. The applicants/tenderers must be aware that often, not only applicants/tenderers must fill out the ESPD, but also for example sub-suppliers upon which the applicants/tenderers have based their capacity.

In general, sub-supplier are not to fill out the ESPD completely, but as a minimum, they must fill out Parts II A and B and Part III concerning reasons for exclusion.

Parts IV and V are only to be filled out when relevant in order to assess whether the applicant/tenderer has met the contracting authority's minimum requirements concerning qualification or selection.

It will not always be clear to the applicant/tenderer when this is relevant, and the contracting authority is therefore requested to help and state in the contract notice to which extent any other entities are to fill out Parts IV and V, and applicant/tenderer should ask question if anything is unclear.

iv. The consequence of failure to fill out or forward the ESPD will be that the contracting authority is entitled but not obligated to reject an applicant/tenderer.

Alternatively, the contracting authority may ask the applicant/tenderer to supplement, specify or complete information in the ESPD as long as the contracting entity complies with the basic principles of section 2 of the Procurement Act, and that the information does not imply that a new application or tender must be provided.

When meeting these requirements, the contracting entity may generally also ask the applicant/tenderer to forward the ESPD after the expiry of the time limit if the ESPD is not forwarded at first.

OBTAINING OF DOCUMENTATION

Prior to the award decision, the contracting authority must demand that the applicant/tenderer awarded the contract provides documentation of some of the information stated in the ESPD.

The documentation will prove that the tenderer meets the requirements. When planning the tender procedure, you will always have to set aside time to obtain the documentation. In this connection, the contracting authority must give the selected tenderer an appropriate deadline to obtain the documentation. According to the Competition and Consumer Authority's guidelines concerning procurement rules (2016), the deadline must be 2½ weeks as a minimum as it will typically take the Business Authority 2 weeks to prepare a service certificate, which will constitute a part of the required documentation. On the other hand, the tenderer must be prepared to document the content of the ESPD without undue delay if awarded the contract. However, the contracting entity cannot demand documentation if it is already in possession of the required documentation in connection with previous tender procedures.

contacts

Marie Løvbjerg

Attorney