Tenderer

We assist from the very beginning until award of the contract, and after the award we advise on the right to complain of infringements of the procurement rules and the right to get access to files and documents. We also represent clients before the Complaints Board for Public Procurement and the ordinary courts, where we rely on our extensive litigation experience.

In a tender process, we typically assist tenderers:

• in applying for prequalification
• in drafting and checking the quality of tenders
• with advice on the content of the tendered contract
• in following up on a successful tender and negotiating the contract
• in following up on an unsuccessful tender and getting access to documents
• in filing complaints
• in filing lawsuits
• with advice during the term of the contract, including in case of modifications.

Prequalification

A potential tenderer who applies for prequalification requests permission to tender for a contract.

The contracting entity is entitled to apply a prequalification procedure only in certain types of tenders, including restricted procedures, competitive dialogues, and negotiated procedures with prior contract notice.

In the tender notice, the contracting entity will specify the criteria that will be taken into account when assessing whether the applicant is capable of performing the contract.

We advise applicants in relation to:

• prequalification
• drafting of the application
• understanding the tender documents.

We make sure that potential tenderers meet all the formal requirements in the tender notice to maximise their chances of qualifying for prequalification and participating in the tender.

Tender

A tender for a contract must be prepared in accordance with the tender specifications. Even minor discrepancies between the tender and the specifications can have as a result that the contracting entity has to reject the tender.

We focus on  increasing the tenderer’s chances of winning the tender.

We are often called on to assist in:

• drafting tenders
• reviewing tender documents
• identifying ambiguities in the tender documents and asking clarifying questions to the contracting entity to ensure that the tender meets the requirements.

We go through the tender documents, identify which competition parameters will be taken into account by the contracting entity, and advise tenderers on how they secure their position.

The tendered contract

The purpose of the procurement rules is to find the best or cheapest offer. The rules prescribe which procedure must be followed for this purpose.

The contract, on the other hand, regulates the cooperation between the contracting entity and the supplier after completion of the tender process. It is therefore important that the contract regulates the parties’ relationship during the term of the contract in a clear and concise manner.

The terms of the tendered contract may influence the tender price and the attractiveness of the contract. If the terms of the contract are onerous or impose significant risks on the tenderer, this should be reflected in the tender submitted.

Our tender group is organised so as to ensure that the case is always handled by a specialist. We therefore have the professional insight required to assess the fairness of the tendered contract.

We assist:

• in assessing whether it is commercially viable to tender for a specific contract
• in assessing whether it is necessary to make reservations in respect of unfair contract terms.

Where the tender is unsuccessful

The contracting entity must inform the tenderers as soon as possible whether a contract has been awarded or whether the call for tenders has been cancelled.

We have extensive experience in assisting unsuccessful tenderers in:

• requesting an explanation for the contracting entity’s decision
• requesting access to files and documents in order to assess why the contract was awarded to another tenderer.

The sooner we are involved, the better we can safeguard your interests.

Complaints

Based on the explanation given by the contracting entity or the circumstances in general, it may turn out that the decision to award the contract to another tenderer was made in contravention of the procurement rules. In that case, the tenderer may complain to the Complaints Board for Public Procurement, contact the Competition and Consumer Authority, or take legal action.

The advantage of filing a complaint with the Complaints Board rather than taking legal action is that the Board’s turnaround time is significantly shorter and the costs of the proceedings are lower.

Furthermore, it is possible in certain circumstances to argue that the complaint should have a delaying effect to prevent the contracting entity from contracting with the successful tenderer. In addition, a tenderer who complains to the Complaints Board retains the possibility of taking subsequent legal action.

The Complaints Board may both set aside an unlawful decision, order the contracting entity to make a tender legal, and award damages to a tenderer who has suffered a loss as a result of an infringement of the procurement rules.

The Competition and Consumer Authority can only guide contracting entities on their understanding of the procurement rules, but many entities follow the Authority’s guidelines.

Basis for complaint

Kromann Reumert’s procurement group comprises experienced lawyers who have represented clients in a wide variety of cases before the Complaints Board.

 As part of our services, we assess:

• whether there are grounds for complaining
• the chances of succeeding in a complaint

Lawsuits

The decision of the Complaints Board can be brought before the courts. The tenderer may also bring a possible infringement of the procurement rules directly before a court of law.

Since litigation can be a costly and time consuming affair, we always make an in-depth assessment of the possible outcome of the case.

We  explore the possibilities of reaching an amicable solution before we take the matter to court.

Where the tender is successful

The best outcome of a tender process is of course that you are awarded the contract, which will represent the beginning of a cooperation between you and the contracting entity.

The procurement rules also apply in the period between the issue of the award decision and the conclusion of the contract, including, indirectly, to the possibilities of adjusting the contract during its term.

In connection with conclusion of the final contract, certain clarifications may be needed, and some tender procedures are even based on the final negotiation of the contract taking place in this phase.

With the assistance of our procurement group, you are guaranteed a commercially attractive outcome of the negotiations and a balanced contractual relationship.

With our experience and expertise, you will always have a competent negotiator by your side, both in the final stages of the tender process and during the cooperation, so that any necessary adjustments to the contract can be made without infringing the procurement rules.

Advice during the contract period

Even after signing of the contract, a number of issues may arise, including the question whether the contract can be:

• modified
• adapted to new circumstances
• renewed.

The question whether the contract can be lawfully modified depends i.a. on the specific amendments requested and whether they are necessary due to external circumstances which are beyond both the contracting entity’s and the tenderer’s control. The interpretation of the contract itself may also give rise to questions.

Our procurement group comprises a number of specialists with vast experience in both procurement law and another practice area, such as IT law, real property law, and public sector law.

We are therefore able to provide both procurement law and contract law advice throughout the contract period.