28 April 2016

Practical advice concerning the European Single Procurement Document (ESPD)

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.

related news

The European Court of Justice: Redundancies - when?

9 October 2017

In two recent cases, the European Court of Justice (ECJ) ruled that an employer should have consulted the employees’ organisations before giving notice of changes that resulted in collective redundancies.

The European Court of Justice: Public servant was entitled to be reinstated in trial position

9 October 2017

The European Court of Justice (ECJ) has assessed that a public servant employed in a trial position as head of department should have been offered the same or a similar position when returning from parental leave, even though the probationary period had expired.

Compliance: E-leaning in competition law

20 September 2017

Horten now offers e-learning in competition law tailored to each company.

Exclusivity discounts: the Intel case, including record-high fine is remitted

20 September 2017

The European Court of Justice ruled that a dominant company's use of excklusivity discounts does not always constitue abuse of the company's dominant position.

New judgment from the European Court of Human Rights concerning companies’ monitoring of private communication

19 September 2017

The European Court of Human Rights recently ruled that employers must inform employees of the possibility of monitoring and to which extent.

European ip rights in Great Britain after Brexit

19 September 2017

Great Britain's exit from the EU will create uncertainty for both British and EU27 companies in relation to the extent and protection of intellectual property rights in Great Britain. It is therefore of great interest and importance to clarify the consequences of Great Britain’s exit and how to handle them.

Google - an overview of the summer’s EU case against the internet giant

27 July 2017

In June 2017, the European Commission ruled in the first of three pending cases against Google and ordered Google to pay a record-high fine of EUR 2.42 billion for abuse of its dominant position. According to the European Commission, Google favoured Google Shopping in its search engine.

Still waiting for a European Patent Court

20 June 2017

The agreement concerning the European Patent Court is once again delayed. The agreement concerning the establishment of a so-called unitary patent and a joint patent court was planned to come into force in December 2017, but this will presumably not be the case.

White Paper concerning the data protection regulation has arrived

29 May 2017

The Ministry of Justice has now published the long awaited White Paper concerning the data protection regulation and the legal framework for Danish legislation in this respect.

Merger control: When to notify mergers and acquisition to national competition authorities

10 May 2017

In mergers and acquisitions, it is always relevant to consider, if the transaction is subject to merger control – on either a national or an EU level. Transactions that are subject to merger control must be notified and approved, before they are implemented.

Horten advances in new Chambers and Legal 500 rankings

19 April 2017

In 2017, the leading international ranking agencies, Legal 500 and Chambers, are once again ranking Horten among the best law firms in Denmark.

Conditional approval of Maersk Line's purchase of German container shipping company

12 April 2017

The European Commission has approved Maersk Line's takeover of the German container shipping company Hamburg Südamerikanische Dampfschifffahrts-Gesellschaft KG (HSDG).

The European Commission: Aid to construction of Kriegers Flak is legal

30 March 2017

The Commission has approved the Danish state aid to the offshore wind turbine project Kriegers Flak as the project will contribute to an increased use of renewable energy in Denmark.

Extensive commitment protects innovation in connection with approved DOW/DUPONT merger

30 March 2017

The European Commission has approved the merger between DOW and DuPont after long-term commitment negotiations. The approval is conditional on DuPont selling many of its pesticide companies and its global R&D.

Conviction in bribery actions against Atea

24 March 2017

The Eastern High Court has delivered convictions in two bribery actions where Atea gave away iPhones, iPads and other IT equipment to two senior employees at the City of Copenhagen and DSB.

SAS is once again to pay major fine for participating in the Air Cargo cartel

20 March 2017

SAS and a number of other airlines have once again been fined by the European Commission for their participation in the Air Cargo cartel. In 2015, the European General Court annulled the Commission's decision due to a procedural error. The Commission has now remedied the error and changed its decision.

The EUDP - new round of applications for grants to energy projects in 2017

1 February 2017

The Energy Technology Development and Demonstration Program (EUDP) has published a new strategy for 2017-2019, which forms the basis of new projects worthy of support. The EUDP is a public scheme supporting new energy technology, which must contribute to achieving the target set in relation to energy and climate. Compared to previous strategies, the new strategy focuses on key areas in a more global perspective.

Are you allowed as a governm¬ent official to say that the municipal chief executive's "core competence may not be the truth"?

30 January 2017

According to the Ombudsman, it was in accordance with the rules of government employees' freedom of speech when a municipal employee was given a warning for writing on his Facebook profile that the municipal chief executive was "a person whose core competence may not be the truth".

Global Leaders in Law appoints Horten as exclusive partner for Denmark

10 January 2017

Global Leaders in Law, the leading global general counsel forum based in London, and Horten has announced partnership. Appointed as a global bronze partner, Horten will sponsor the activities of Global Leaders in Law in 2017.

Competition law - Adoption of new rules on claims for damages

1 December 2016

The directive concerning damages to customers (and others) suffering a loss due to violation of the competition rules came into force in December 2014 (Directive 2014/104/EU). The directive is now being implemented into Danish law.

Aid to the Eurovision Song Contest was not illegal under municipal and state aid law

14 October 2016

On 12 October 2016, the Ministry of Social Affairs and the Interior concluded in a statement that the aid provided through Projektselskabet by the City of Copenhagen and the Capital Region of Denmark to the Eurovision Song Contest in 2014 was legal.

The ombudsman: Dismissal of upper secondary school teacher was contrary to government employees' freedom of speech

5 September 2016

The ombudsman found that it was "strongly criticisable" that Campus Bornholm had dismissed a teacher for having criticised the employer.

Waste suited for incineration is perhaps to be opened to competition

17 May 2016

On 13 May 2015, the Government published a proposal for alternative financing of the so-called PSO tax. The financing is to take place under the Budget instead of via the PSO tax. One of the initiatives is to open the waste energy production sector to competition

Gift policy

3 May 2016

With a conviction of bribery, your company risks having to wave goodbye to public orders due to the rules of the Procurement Act.

Public Procurements: should we or shouldn't we?

29 April 2016

On 30 March 2016, the Complaints Board for Public Procurement made a partial decision adding to the number of decisions concerning the requirement that an agreement must be bilateral to be considered requiring a tendering procedure.

Dispute concerning cost-free loan guarantees to two district heating companies may be brought before the Supreme Court

23 February 2016

State subsidies: A dispute concerning cost-free loan guarantees to two district heating companies may be brought before the Supreme Court, but the municipal initiatives should continue.

Tax and state aid: where are we going?

10 February 2016

Since 2013, the Commission has investigated the member states' tax rulings to establish whether the state aid rules are violated through selective tax advantages.

New nursing home in Hornbæk to be built and run by the OK Foundation

9 February 2016

In February, the Municipality of Helsingør selected the OK Foundation as cooperation partner in connection with the building of a new nursing home in Hornbæk.

Political agreement on new EU-US privacy shield agreement

4 February 2016

A new political agreement between the European Court of Justice and the US is finalized, after the European Court of Justice set aside the the Safe Harbor scheme last year.

Loan guarantees to two district heating companies were illegal and thereby invalid

26 January 2016

This was established on 25 January 2016 when the Western High Court ruled on a dispute between the Municipality of Sønderborg and two local district heating companies. The ruling means that the municipality is obligated to charge a guarantee commission which constitutes more than DKK 70 million in the guarantee period.

Major savings for the municipality of Brøndby by repurchasing and inviting tenders for street lighting contract

25 January 2016

Horten has assisted the municipality of Brøndby through a lenghty process of negotiations in connection with a repurchase and call for tenders for operation as well as maintenance and renovation of the municipality's street lighting installations.