What should contracting authorities pay attention to?
As of November 1, 2023, changes have been made to the service certificates that companies can request from the Danish Business Authority. These changes have a direct impact on how public procurers should interpret and use these certificates in their assessment process.
The main changes include a new addition at the bottom of the certificate that informs about any criminal offenses related to the use of illegal labor. In addition, a new indicator at the top of the certificate will clarify if there are any remarks associated with the company. This visual addition makes it easier for contracting authorities to quickly identify if there are any issues that require further investigation.
Validity of older service certificates after November 1, 2023
According to the Danish Competition and Consumer Authority, older service certificates that a tenderer has requested to be issued before the entry into force of the amendment retain their fair value for the period set by a contracting entity in relation to a specific procurement. The contracting entity should actively assess the relevance of legacy certificates on a case-by-case basis, usually allowing a period of use of between 6 and 12 months for such certificates.
Are you up to date on the new e-forms and their impact on EU tendering? Read our article: Implementing e-forms in EU tenders: A guide for contracting entities.
The consequences of providing information about illegal workers
Information about the use of illegal labor must not lead to automatic exclusion of a company. If the information appears on the service certificate, it may mean that the company has or may have been convicted of such offenses. This information does not mean that the company is guaranteed to be convicted.
In addition, the information may indicate that the company's management has not consented to the collection of certain information or has not made a solemn declaration in connection with the certificate of service.
Therefore, before excluding a company, the contracting entity must first conduct its own in-depth investigation into whether the company or its management has actually been penalized.
If the contracting entity finds that the company or its management has been punished, the contracting entity must then make a specific assessment of whether exclusion is a proportionate consequence of the matter in question. This specific assessment includes an assessment of the seriousness and relevance of the infringement in relation to the current procurement procedure. Only in particularly aggravating circumstances will such an infringement be listed as a remark on the service certificate and may justify exclusion.
Background for the change
The change to the service certificate is the result of a political decision made in the wake of the Health and Safety Agreement of March 2023. The purpose is to intensify the fight against social dumping and the use of illegal labor. This is a step towards preventing companies that engage in such practices from obtaining public contracts.
