- Albert Sverrisson
The aim of this paper is to examine the legal obligation of contracting authorities to impose minimum requirements on economic operators pertaining to their suitability to pursue the professional activity, their economic and financial standing as well as their technical and professional ability.
An examination of such an obligation rises from the fact that it is discussed within administrative adjudications whether or not the Danish government has acted in accordance with the rules governing its practice.
In the answering of that question, two areas of law are examined. First, there is an examination of the European Union directive on public procurement and the Danish implementation of that directive which is found in the Danish Act of Public Procurement. Second, there is an analysis of the obligations that arise from the fundamental Danish principles of public management and good governing.
The regulations on public procurement are examined for whether they contain obligations for the contracting authorities to set minimum requirements on economic operators.
The conclusion of that examination is that the rules do not contain such obligations for contracting authorities. Subject to the wording of both the Directive as well as the Danish Act, contracting authorities are obligated to impose minimum requirements of ability only if they decide to impose any requirements at all. If the contracting authorities do impose requirements on economic operators, they are obligated to set these requirements as requirements for a minimum level of ability. The contracting authorities are also obligated to set only those requirements that are appropriate to ensure that the economic operator has the legal and financial capacities as well as the technical and professional abilities to perform the contract to be awarded.
Since there is not an obligation to impose minimum requirements on economic operators within the Directive or the Danish Act of Public Procurement, the examination then moves on to the analysis of the fundamental Danish principles of public management and good governing.
It is found that the Danish authorities are obligated to act in a manner that is fiscally sound. This obligation extends to economic dispositions such as decisions to send a contract into public procurement or to entering into a contract. An examination of central case law pertaining to this obligation of the authorities shows that the authority must act in an informed and considered manner. There are strong indications that an authority is generally only considered to have acted contrary to the obligation of making fiscally sound decisions in situations where the misconduct gross, as authorities are granted a large amount of discretion in the performance of their activities.
The analysis is concluded with a reflection on the results where it is noted that the reason for the fact that
1) the laws of public procurement do not obligate contracting authorities to impose minimum requirements of ability, and
2) the fundamental principle of Danish public administration law of financial soundness does not contain such an obligation
is that the question is one of a greater political interest rather than a legal one. Among the reasons for this is that the level of accountability that such obligations would bring with it would contribute to a stifling of the competition. The reason for this is that one of the particular problems with setting minimum levels of ability is that small and medium-sized enterprises are often involuntarily excluded from the procurement as a result of the high requirements. The intent of the new Public Procurement Directive and the Act on Public Procurement is to enhance flexibility and transparency. These intentions are met through the freedom of contracting authorities to choose whether or not to impose requirements of ability on economic operators, and through the requirement that any requirements of ability that are imposed are phrased as minimum requirements of ability.
|Udgivelsesdato||15 mar. 2017|