Om forpligtelsen til at offentliggøre evalueringsmetoden efter udbudslovens § 160, stk. 1

Abstrakt

This paper examines The Danish Public Procurement Act from 2016, in which a new section was added with the purpose of creating ex ante transparency for the bidding companies as well as ensuring that the procuring entity was not left with an unconditional free choice between the bidding companies. The section was not implemented directly based on an existing article in the 2014- procurement directive, but instead of the legislative history creating the 2014-procurement directive. The section obligates the procuring entity to publish the evaluation method at the same time as the procurement documents are published but it has been unclear to what extent the procuring entity is required to publish this evaluation method. Furthermore, it turns out, that the interpretation of the new section can have some economic effects, which are worth considering in a legal and economic perspective. Based on these statements, it will be examined if the new section of the Public Procurement Act has the intended effect. In the legal part of the paper, relevant sources of law will be used to answer the legal question, including legal provisions, relevant case law and especially the fundamental principles of equal treatment and transparency. By examining the above, it is concluded, that the new section does not demand an expanding interpretation and the procuring entity in only some cases will be required to describe in details its evaluation method. In the economic chapter of the paper economic theories will be presented to explain the economic effects that the interpretation of the section can cause. It turns out, that the legal conclusion was inexpedient as the total transaction costs would be lower if the procuring entity was obliged to publish a detailed evaluation method. In the economic part of the paper the contextual meaning of the procurement rules is also examined, which will be included in the integrated part of the paper where two efficiency criterions are examined, to find out whether it is possible to create a more social efficient condition where the total welfare is optimized in compliance with The Procurement Act including the procurement principles. Based on the conclusions from the economic chapter of the paper, it turns out that such an allocating of resources is possible. Based on this, it is finally concluded, that the new section in The Danish Procurement Act has only limited effect both legally and economically, as it is not to be interpreted as extensive as first assumed.