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Supreme Court of Denmark

Public procurement procedure and damages 

Case no. 88/2010
Judgment 15 June 2012
 

Montaneisen GmbH
vs.
The Danish Coastal Authority

The Danish Coastal Authority had infringed the public procurement rules by having selected a tender with reservations and was liable in damages for the losses thereby suffered by another tenderer

The case concerned the procurement procedure for stage 2 of the mine clearance at Skallingen, where the Danish Coastal Authority had selected a tender containing reservations.

The Supreme Court held that the Coastal Authority was obliged not to accept the reservations pursuant to Article 2 of the Public Procurement directive, regardless of whether the Coastal Authority was only made aware of the reservations after having selected the tender.

Based on a concrete assessment, the Supreme Court found that the Coastal Authority had not rendered it probable that it would have cancelled the procurement procedure if the tender had been rejected. The Supreme Court consequently gave importance to the fact that Montaneisen's tender, which was the most second-most advantageous tender, would have been selected. For this reason, Montaneisen was entitled to damages for the loss suffered by the company as a result of the tender not being selected.

 The damages (expectation damages) were assessed at a total amount of DKK 4 million.

Consequently, the Supreme Court amended the High Court's judgment with regard to the amount of damages.

 

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