DENMARK Law and Practice Contributed by: Thomas Maaberg Hansen and Peter Sand, Gorrissen Federspiel
The Executive Order on Defence and Security Under the Executive Order on Defence and Security, the following particular security-related reasons for exclusions apply to procurement. • The candidate has previously been convicted of grave professional misconduct, such as breach of obligations regarding security of information. • The candidate does not possess the reliability necessary to exclude risks to the security of the country. 2.11 Transparency and Confidentiality The following notices must be issued with detailed information that satisfies the principle of transparency in the procurement procedure: • contract notice; • contract award notice; • notice of amendment to the procurement docu - ments or supplementary information; and • notice of contract modification. Generally, there must be free and direct access to the tender documents. However, parts of the tender docu - ments may be exempted from publication where the need for confidentiality justifies this. Please refer to 2.4 Restricted and Classified Pro - curement regarding security interests and declared secrecy as exemptions to the procurement rules and 2.1 Defence Procurement Legislation regarding Arti - cle 346 of the TFEU. 2.12 Modification and Termination of Defence Contracts Modification of Contracts Following Award A distinction is drawn between material changes (which give the contract a substantially different character) and non-material changes. A modification of an essential element requires a new procurement procedure. Termination of Defence Contracts There is no specific regulation governing the grounds on which contracting authorities/entities may termi - nate a defence contract. However, under the general
The contracting authority must also exclude any candidate or tenderer who has unpaid debts of DKK100,000 or more to public authorities in respect of taxes, duties, or social security contributions – provid - ed that no settlement arrangement has been entered into with the recovery authority and complied with. Furthermore, a candidate or tenderer is to be exclud - ed if: • it is established in a country included on the EU list of non-cooperative tax jurisdictions (and there are no special agreements); • a conflict of interest cannot be remedied by other less intrusive measures; • a distortion of competition from prior involvement in the preparation of the procurement procedure cannot be remedied by other, less intrusive meas - ures; • where the economic operator has been guilty of serious misrepresentation in supplying information required for exclusion or fulfilment of the selection criteria; and • it was previously guilty of grave professional mis - conduct, which renders its integrity questionable. Optional Contracting authorities may further choose to apply the following grounds for exclusion: • non-compliance with applicable obligations in the fields of environmental, social or labour law; • the candidate or tenderer is declared bankrupt or subject to insolvency proceedings or winding-up proceedings or in a similar situation; • the candidate or tenderer has materially breached a previous public contract, a contract with a util - ity company or a concession contract, which has resulted in the termination of the contract or a similar sanction; and • unpaid debts of less than DKK100,000 to public authorities in respect of taxes, duties or social security contributions (subject to the same exemp - tions).
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