DLA Piper: Nordic Public Procurement Bulletin, April 2025

Kontakt: line.voldstad@dlapiper.com

Highlights from Denmark

Procurement Challenges in Specialized Social Services

• The sector of specialised social services in Denmark provides support for individuals with complex needs, as mandated by the Danish Social Services Act – Procurement in this area is governed by the “Light Regime” under Chapter III of Directive 2014/24/EU, implementing Articles 74–76. This regime offers procedural flexibility and higher thresholds, but presents notable challenges in balancing price, quality, and competition.
• A central challenge is the formulation of objective minimum requirements – The Danish Complaints Board for Public Procurement has held that requirements based on considerable discretionary judgement are unsuitable as minimum requirements. For complex services – such as social pedagogical support or residential facilities, traditional minimum requirements are often impractical, as it is difficult to specify objective criteria for service environments or daily operations.

• Additionally, services are typically financed through fixed governmental rates – This can cause limiting of pricing flexibility which often pressures providers to reduce quality to meet price constraints. This disproportionately affects small, specialised providers, potentially reducing market diversity and regional offerings.

Direct Awards in Defence Procurements

• Recent changes in Danish defence procurement strategy have led to a preference for direct awards of contracts, bypassing standard competitive procedures – Article 346 of the Treaty on the Functioning of the European Union (TFEU) allows Member States to procure goods, services, and works directly, without prior competition, when essential security interests are at stake. Similarly, Article 28 of Directive 2009/81 permits negotiated procedures without prior publication in urgent situations, such as crises or armed conflicts.
• While direct awards enable rapid procurement in times of urgency, their frequent use poses significant risks – Overreliance on such procedures can reduce competition, potentially leading to higher prices and less dynamic supply markets. Experience indicates that defence procurements conducted without open competition may result in suboptimal or more expensive solutions. The flexibility provided by Articles 346 TFEU and 28 of Directive 2009/81 is not without limits: exceptions must be strictly justified on grounds of public or essential security interests, and the contracting authority must document the necessity and proportionality of each direct award.
• The Danish Complaints Board for Public Procurement is central in ensuring compliance and transparency in the defence market – The Danish Complaints Board for Public Procurement plays a crucial role in reviewing whether these exceptions are properly applied, especially as the number of direct awards increases. Legal challenges are likely if stakeholders perceive that the requirements of proportionality and necessity are not met. A balanced, transparent, and legally robust procurement strategy is essential to safeguard both Denmark’s security interests and fair market competition.