What the Repeal of Section 134a Means for Danish Public Procurement, Practical Steps for Contracting Authorities

Last reviewed: 1 June 2026

The Danish government’s proposal to repeal Section 134a Denmark procurement rules marks the most significant change to exclusion-ground practice since the provision was introduced in 2022. On 14 July 2025 the Danish Competition and Consumer Authority (Kfst) announced that the provision was expected to be repealed during the 2025/26 parliamentary year, citing concerns about its compatibility with overarching EU procurement principles. For contracting authorities, the practical consequence is immediate: procurement documents, exclusion-check workflows, framework agreements and complaint-handling procedures that reference or rely on Section 134a must be reviewed and, where necessary, updated before the repeal takes effect. This guide sets out, step by step, what procurement teams and in-house counsel need to do now.

Executive Summary: What Contracting Authorities Must Know Now

If the repeal of Section 134a proceeds as proposed, every contracting authority in Denmark will need to remove this exclusion ground from its operational toolkit and realign processes with the remaining provisions of the Danish Public Procurement Act. The key actions are:

• Audit live tenders. Identify every active procurement notice, tender document and evaluation memo that references Section 134a.
• Recalculate exclusion assessments. Re-examine whether any bidder was excluded or could have been excluded solely under Section 134a and determine whether alternative exclusion grounds apply.
• Update standard templates. Remove Section 134a language from pre-qualification questionnaires, contract notices and award memos.
• Revise framework agreements. Amend eligibility and subcontracting clauses in existing frameworks, particularly those operated by centralised purchasing bodies.
• Prepare complaint-response protocols. Refresh internal procedures for responding to complaints before the Danish Complaints Board for Public Procurement, since bidders previously excluded under Section 134a may now challenge those decisions.
• Train procurement staff. Brief all officers on the changed legal landscape, transitional rules and escalation procedures before the effective date.

What Was Section 134a and Why Is It Being Repealed?

Section 134a was a discretionary exclusion ground inserted into the Danish Public Procurement Act in 2022. It gave contracting authorities a basis to exclude economic operators from procurement procedures in circumstances that went beyond the mandatory and discretionary grounds already provided by the EU Procurement Directives.

The Text of Section 134a

In its operative form, Section 134a allowed a contracting authority to exclude a tenderer where the authority could demonstrate certain risk factors connected to the tenderer’s corporate structure or third-country affiliations. The full Danish text is available at danskelove.dk. The provision was unique to Danish law and did not have a direct counterpart in the EU Procurement Directives.

Government and Regulatory Rationale for the Section 134a Repeal

The Kfst’s 14 July 2025 notice explained that the expected repeal reflected the government’s assessment that Section 134a raised questions of compatibility with EU free-movement and non-discrimination principles. Industry observers note that since the provision was adopted as a domestic add-on to the Directive framework, its application created legal uncertainty for both contracting authorities and tenderers, particularly in cross-border procurements published on TED. The Confederation of Danish Industry (DI), in its 2026 consultation response on the EU procurement directives, supported greater procedural flexibility and harmonisation, a position broadly consistent with removing Denmark-specific exclusion grounds.

The likely practical effect is that contracting authorities will lose one tool from their exclusion-ground inventory and will need to rely instead on the remaining grounds in Sections 135–137 of the Act, together with any applicable sector-specific legislation.

When Will the Section 134a Repeal Take Effect and What About Existing Procedures?

The repeal was proposed for adoption during the 2025/26 parliamentary year. As of the date of this article, contracting authorities should monitor the Kfst website and the Danish parliament’s (Folketinget) legislative tracker for the final effective date. Industry observers expect the repeal to take effect either upon Royal Assent or with a short transitional window.

Legislative Timeline

For procurements already published with Section 134a as a stated exclusion ground, the transitional position will depend on whether the repeal legislation includes specific savings provisions. If no transitional clause is enacted, the general principle under the Danish Public Procurement Act is that the law in force at the time of the contracting authority’s decision governs the procedure. Contracting authorities should document the legal basis relied upon at each procedural stage and be prepared to issue a clarifying addendum if the repeal takes effect mid-procedure.

How the Repeal Changes the Complaints Process and Public Procurement Remedies

The removal of Section 134a will have a direct impact on how complaints are assessed by the Danish Complaints Board for Public Procurement and on the remedies available to aggrieved tenderers. Contracting authorities that have used Section 134a as a basis for exclusion face the possibility that affected suppliers will file complaints seeking either annulment of the award decision or damages.

Complaints Board Practical Steps

The Complaints Board’s annual report confirms that complaints concerning exclusion grounds have remained a significant proportion of the Board’s caseload. Once Section 134a is repealed, early indications suggest the Board will scrutinise whether contracting authorities can point to an alternative, valid exclusion ground under Sections 135–137 for any decision previously resting on Section 134a. Where no alternative ground exists, the Board may find the exclusion unlawful, with the consequence that the procurement procedure could be annulled or the authority ordered to pay damages.

Procurement teams should take the following preparatory steps for procurement compliance in Denmark:

• Review pending complaints. If a complaint is already before the Board and Section 134a was relied upon, assess immediately whether the exclusion can be sustained on alternative grounds.
• Update complaint-response templates. Remove any reference to Section 134a in standard response documents filed with the Board.
• Document decision rationale. For every award decision that referenced Section 134a, prepare a contemporaneous note explaining the legal basis and whether the outcome would have been the same under the remaining exclusion grounds.

Likely Changes to Remedies and Damages Risk

The Complaints Board has established that a contracting authority’s failure to apply valid exclusion grounds, or its reliance on an invalid ground, can constitute a material breach of procurement law. Analysis of recent Board rulings on material changes in procurement procedures, as summarised by Kromann Reumert, confirms that the Board applies a strict proportionality test when evaluating whether a procedural irregularity warrants annulment. Industry observers expect that if Section 134a is found retrospectively to have lacked a valid EU-law basis, the Board may treat reliance on it as a substantive defect rather than a mere technical irregularity.

For contracting authorities, the practical risk is twofold: the potential annulment of an ongoing procurement and a damages claim from an excluded bidder. Both risks can be mitigated by undertaking the audit and documentation steps set out below.

Immediate Procedural and Contractual Steps: 10-Step Compliance Checklist for Contracting Authorities

This operational checklist is designed for procurement officers, contract managers and in-house legal teams seeking to achieve full procurement compliance in Denmark following the Section 134a repeal. Each step should be completed before the effective date of the repeal or, if the repeal has already taken effect, as soon as practicable.

1. Audit all live procurement notices. Search every active contract notice, prior information notice and qualification questionnaire for any reference to Section 134a. Flag each document for amendment.
2. Recalculate exclusion assessments. For each tenderer excluded (or at risk of exclusion) under Section 134a, determine whether an alternative exclusion ground under Sections 135–137 of the Danish Public Procurement Act applies. If no alternative ground exists, the exclusion cannot be sustained post-repeal.
3. Update tender documents and standard templates. Remove Section 134a from pre-qualification questionnaires, ESPD supplements, evaluation matrices and scoring guides. Replace references with the applicable remaining provisions.
4. Revise evaluation and award memos. Where a draft award memo references Section 134a as a basis for a decision, revise the memo to state the alternative legal basis or, if none exists, flag the decision for reconsideration by the procurement lead.
5. Notify legal and compliance teams. Circulate a short internal advisory confirming the repeal, summarising the impact and directing staff to updated templates. A sample communication is provided in the Templates section below.
6. Issue supplier communications where necessary. Where a tenderer was formally notified of exclusion under Section 134a, consider whether a follow-up communication is required, for example, inviting the tenderer to resubmit or confirming that the exclusion stands on alternative grounds.
   Sample wording: “We write to inform you that Section 134a of the Danish Public Procurement Act has been repealed. We have reviewed the basis for our earlier decision and confirm that [alternative exclusion ground / your exclusion has been lifted and you are invited to participate in the re-opened procedure].”
7. Amend framework agreement clauses. Review eligibility, exclusion and subcontracting clauses in all active framework agreements Denmark-wide. Where a framework relied on Section 134a as a condition for supplier eligibility or as a ground for removal, amend the clause or execute a formal contract variation.
8. Coordinate with centralised purchasing bodies. If your authority calls off from a centralised framework (e.g. SKI), confirm with the central purchasing body that the framework terms have been updated. Centralised purchasing Denmark entities bear a particular responsibility to cascade changes quickly.
9. Retain evidence and maintain the audit trail. Preserve all documents created during the review, including before-and-after versions of templates, internal memos and supplier correspondence. These records will be essential if a complaint is filed.
10. Train procurement staff. Conduct a focused briefing session for all officers involved in procurement. Cover: (a) which exclusion grounds remain available; (b) how to handle mid-procedure changes; (c) escalation procedures for borderline cases; and (d) complaint-response protocols.

Sample tender amendment notice: “Addendum to Contract Notice [reference]. The contracting authority confirms that Section 134a of the Danish Public Procurement Act has been repealed and is no longer relied upon as an exclusion ground in this procurement. The remaining exclusion grounds under Sections 135–137 continue to apply. All other terms of the procurement remain unchanged.”

Sample complaint-response excerpt: “The contracting authority notes that Section 134a has been repealed. The exclusion of the complainant was, however, based on [alternative ground / Section 136(1)(x)], which remains in force. The contracting authority’s decision is therefore unaffected by the repeal.”

Framework Agreements and Centralised Purchasing: Contract Risk and Allocation Post-Repeal

Framework agreements Denmark-wide have been among the procurement instruments most directly affected by Section 134a, because centralised purchasing bodies frequently incorporated the provision into their standard terms as a pre-qualification or ongoing-eligibility condition. The section 134a repeal therefore has cascading implications for every authority that calls off from these frameworks.

Comparison: Post-Repeal Obligations by Entity Type

Suggested Contract Clauses to Reallocate Risk

Where a framework agreement includes a clause stating that the contracting authority may exclude a supplier under Section 134a, that clause should be replaced with a general reference to the exclusion grounds available under Parts 9–10 of the Danish Public Procurement Act. A suitable formulation might read: “The contracting authority reserves the right to exclude an economic operator on any ground set out in Sections 135–137 of the Public Procurement Act, as amended from time to time.”

Practical Procurement Flow for Centralised Units

Centralised purchasing bodies should issue a circular to all participating authorities confirming: (a) the date from which Section 134a will no longer be applied; (b) the revised eligibility conditions; and (c) the contact point for queries. Each participating authority should acknowledge receipt and confirm that its own internal processes have been updated accordingly.

Case-Law and Regulatory Watch: Complaints Board Rulings 2024–2026 That Matter

Several recent decisions of the Danish Complaints Board for Public Procurement shed light on how the Board is likely to approach disputes arising from the section 134a repeal. The Board’s established practice on material changes in procurement procedures, most recently analysed in a Kromann Reumert case summary involving the Danish defence sector, confirms that any alteration to the exclusion criteria applied during a live procurement may constitute a material change requiring the procedure to be restarted.

Separately, the abolishment of the central unit for the assessment of self-cleaning measures, reported by Plesner, illustrates the broader trend of the Danish government simplifying and harmonising its procurement framework. Both developments reinforce the importance of contracting authorities documenting their decision-making rationale at every stage.

How to Apply Board Rulings to Internal Decision-Making

Procurement teams should extract three operational principles from the recent case-law:

• Proportionality first. If the Board finds that an exclusion based on Section 134a was the sole basis for a decision and no alternative ground can be cited, the award decision is vulnerable to annulment.
• Suspension risk. A complaint that raises prima facie grounds for challenging an exclusion under a repealed provision may result in automatic suspension of the contract award under the Remedies Directive framework.
• Audit trail as defence. Detailed documentation of the legal analysis underlying each exclusion decision is the single most effective defence against a successful complaint. Contracting authorities that have maintained thorough records are far better positioned to sustain their decisions before the Board.

Templates and Annexes: Checklist, Sample Letters and Timeline

The following templates are designed for immediate use by procurement teams. Each template should be reviewed by qualified legal counsel before deployment to ensure it reflects the specific facts of the procurement in question.

• Procurement compliance checklist (PDF). A one-page downloadable checklist summarising the 10 steps above, with tick-boxes for each action and a column for the responsible officer and completion date. Contracting authorities can request this template by contacting Global Law Experts through the lawyer directory.
• Sample tender amendment notice. See the wording provided in Step 6 of the checklist section above. Adapt as needed for your procurement reference number and specific exclusion-ground analysis.
• Sample supplier communication. The notification wording in Step 6 can be adapted for suppliers whose exclusion is being lifted as well as those whose exclusion is being maintained on alternative grounds.
• Internal advisory memo template. Subject line: “Action required, repeal of Section 134a of the Danish Public Procurement Act.” Body: Brief description of the repeal, summary of required actions, link to updated templates, and deadline for compliance.
• Complaint-response template. The sample complaint-response excerpt in the checklist section provides a starting framework. All responses filed with the Danish Complaints Board for Public Procurement should be reviewed by legal counsel familiar with the Board’s procedural rules and current public procurement remedies practice.

For related legislative developments affecting Danish legal practice, see also our guide to Denmark’s 2026 deepfake law.

Conclusion and Recommended Next Steps

The repeal of Section 134a Denmark procurement rules requires prompt, structured action from every contracting authority. The three most important steps are: first, audit all active procurements and framework agreements for any reliance on Section 134a; second, update templates, memos and complaint-response procedures before the effective date; and third, maintain a detailed audit trail to defend past decisions before the Complaints Board. Contracting authorities that act early will significantly reduce their exposure to annulment risk and damages claims. Procurement teams seeking specialist guidance on these changes should consult a qualified public procurement lawyer through the Global Law Experts directory.

Sources

1. Danish Competition and Consumer Authority (Kfst), English notice (14 July 2025)
2. The Public Procurement Act (English PDF), udbudslov.dk
3. TED / EU Tender notice referencing Section 134a
4. DanskeLove, §134a (Danish text)
5. Nævnenes Hus (Complaints Board), annual report 2023 (English)
6. Dansk Industri, 2026 consultation response (DI)
7. Plesner, firm alert on legislative changes
8. Kromann Reumert, Complaints Board rulings summary