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New guidance on tax issues in public procurement
New guidance from the Danish Competition and Consumer Authority clarifies how requirements may be imposed regarding tax issues in connection with procurement and where the boundaries lie within the EU procurement rules.
Public contracting entities may not impose requirements for special tax policy or practice in procurement, regardless of whether the procurement is above or below EU thresholds. As a rule, this type of requirement is not associated with the specific procurement but concerns the company's general conditions.
But there are a few exceptions. For contracts below the thresholds with no clear cross-border interest, there is an option to include tax matters as contractual terms. But whether it is objective and proportional to impose requirements regarding e.g. tax policy will depend on a specific assessment from procurement to procurement.
The guideline "Tax matters in public procurement" contains a detailed review of the Danish Procurement Act’s rules on the exclusion of companies from public tenders. Read about the possibilities of:
- excluding a company from participation based on its geographical location
- excluding a company based on the grounds for exclusion provided for in the Danish Public Procurement Act
- including tax issues when assessing a company's suitability for participation in a tender process
- using tax issues when awarding contracts
- stipulating contractual terms on tax matters.
Contracting entities may use this guidance in situations where a legal assessment is to be carried out of whether specific requirements on tax matters may be included in a tender within the framework of the Danish Public Procurement Act and the EU procurement rules.
"Tax matters in public procurement" is 32 pages long and available free of charge from the Competition and Consumer Authority's website.