Udelukkelse fra offentlige udbud på baggrund af væsentlig misligholdelse af en tidligere offentlig kontrakt: I et udbudsretligt og økonomisk perspektiv

Abstract

This master’s thesis explores whether there is an incentive for contracting entities to enroll the voluntary ground for exclusion that allows for the exclusion of tenderers due to previous material breach of a public contract. Furthermore, it will be examined to what extent this incentive can be optimized through a change in legislation. The thesis starts with a legal analysis of whether the Public Procurement Act, section 137(1)(5) is practically applicable to contracting entities, and how these must carry out an assessment of selfcleaning. It is concluded, that in order to assess the tenderers documentation of reliability, the contracting entity needs to consider all measures of self-cleaning in the Public Procurement Act, section 138(3) depending on the specific case. In addition, it is concluded that from a fair competition perspective, it is problematic that a tenderer can breach its previous contractual obligations and still win a public tender. It is found that the Public Procurement Act, section 137(1)(5) is practically applicable, but in many respects does not work in practice. As the wording of the provision imposes a strict burden of proof on the contracting entity, can prove, the interpretation of which is relatively unclear, the voluntary ground for exclusion in section 137 (1)(5) of the Public Procurement Act, seems in many respects not to be applicable in practice for contracting entities in public tenders. Next follows an economic analysis of the general incentive for the contracting entity to use the voluntary ground for exclusion. It is concluded, that the contracting entities intended effect in applying the ground for exclusion, is to exclude corrupt actors who speculate in breaching their contractual obligations. Through game theory it is found, that exclusion as a penalty mechanism will not be in the interest of the individual contracting entity, as it restricts competition in the relevant market and only has an effect on the contracting entity in question. The contracting entity therefore does not have a general incentive to exclude the individual tenderer from the process, and therefore no custom is created where tenderers who breach contractual obligations, are generally excluded. In conclusion, the legal and economic analyses are assembled in the integrated analysis. By changing the legislation, the incentive for the contracting entity to use the voluntary ground for exclusion, will increase. Through game theory it is concluded that if more contracting authorities used the voluntary ground for exclusion, it would result in a higher payoff, and thereby be Kaldor-Hicks efficient, which is socially optimal.