DKCO wins Market Court case on public procurement exclusion

Background

A contracting authority conducted a national procurement procedure using an open procedure. The tender documents stipulated that the resource offered by the tenderer must meet a minimum technical requirement relating to capacity.

The authority excluded a tender where the specification of the resource offered did not meet the requirement set. The tenderer appealed the decision to the Market Court, arguing, among other things, that the resource should be deemed to meet the specification, that the resource could be replaced, and that it did not need to be available until the start of the contract period.

The key legal issue was how the minimum technical requirement should be interpreted. Should the requirement be understood strictly according to its literal wording or based on its actual purpose – that is, the actual capacity for use based on the described number of users? In addition, the Market Court examined whether the tenderer’s offer to replace the resource retrospectively would have constituted an impermissible alteration of the tender, as argued by the contracting authority.

Market Court's decision

The Court found that the tender documents made it sufficiently clear that the minimum requirement was to be interpreted in light of its purpose – the actual capacity for use – rather than the nominal total value. The purpose of the resource was to serve a certain number of users, and the requirement presupposed the actual capacity to do so. The Court took account of the following:

• The resource offered by the tenderer had an actual utilisation capacity that fell short of the specified requirement.
• The contracting authority is obliged to exclude tenders that do not meet the specified minimum requirements.
• The tenderer’s offer to replace the resource was submitted only after the tenders had been examined – not in the original tender. 

The Market Court dismissed the tenderer’s appeal as the authority did not act in breach of public procurement legislation.

Conclusion

The decision confirms that minimum technical requirements must be interpreted in a manner appropriate to their purpose, provided that the contracting authority has clearly described that purpose in the tender documents. For contracting authorities, this underscores the value of articulating not only the technical threshold but also the operational need it serves — doing so strengthens the legal basis for excluding non-compliant tenders. Authorities have both the right and the obligation to enforce stated requirements, and tenderers bear full responsibility for ensuring their bids are compliant from day one.