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Supreme Court of Denmark

Contravention of EU public procurement rules 

Case no. 67/2008
Judgment 5 April 2011
 

Per Aarsleff A/S
vs
Amager Strandpark I/S

The issue was, among other things, whether Amager Strandpark I/S had acted in contravention of the equal treatment principle in EU's public procurement rules by having awarded a contract regarding the construction of the beach park Amager Strandpark to Hoffmann/Boskalis JV instead of Per Aarsleff A/S and, if relevant, damages for this.

In the terms of the invitation to tender, Clause 24 of the General Conditions for the Provision of Works and Supplies within Building and Engineering (AB 92) on the contractor's right to extension of time limits had been superseded by special definitions of weather conditions, stipulating that precipitation could not justify extension of time limits, and that other weather conditions only to a very limited extent could justify such extension. At the same time, it was stated that all necessary weather measures, including extended winter measures, had to be included in the bid.

Hoffmann/Boskalis stated in its bid that the Danish Construction Association's standard reservations of March 2001 applied. According to Clause 5 of these reservations, costs incidental to snow clearing and non-contractual winter measures are to be borne separately as additional work, and if the employer refuses to pay for such additional work, the contractor is entitled to an extension of the time limit and, in some cases, payment of standstill costs.

After having reviewed the construction work in relation to Amager Strandpark, the terms of the invitation to tender and the reservations made, the Supreme Court held that Clause 5 of the Danish Construction Association's standard reservations was in contravention of a fundamental element of the terms. For this reason, Amager Strandpark was obliged to exclude Hoffmann/Boskalis' bid pursuant to the equal treatment principle in procurement law, cf. Article 6(6) of Council Directive 93/37 in force at the time.

The Supreme Court found that, according to the nature of the infringement of the public procurement rules, Per Aarsleff A/S had grounds for legal action against Amager Strandpark. It had not been contested that Per Aarsleff A/S would have been awarded the contract if the bid from Hoffmann/Boskalis had been rejected.

Consequently, Per Aarsleff A/S had a claim for damages for loss of profit. For specified reasons, the Court exercised its discretion and assessed damages at DKK 8 million.

The High Court had reached a different conclusion.

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