Kontrolbud i EU-udbud: Retlig kvalifikation og kontraktøkonomiske perspektiver

Mie Møldrup Lorentzen

Student thesis: Master thesis

Abstract

Summary: The subject of this thesis is control bid in EU public procurement. Where a public authority puts out a tender for an assignment it can choose to make a control bid to make sure that outsourcing is the best solution in the current situation. The control bid thereby acts as the public authorities’ own bid to the specific tender. The purpose is to investigate what degree of equivalence the control bid should be given to the bids from the external suppliers. The thesis initially describes how a control bid is classified and treated in Denmark. It is interesting to note that a control bid is not seen in Denmark as a bid on the same level as the external bids, and should not necessarily be treated equally. This can result in an uncertainty for the suppliers. If a control bid is not equally treated it can lead to distortion of competition caused by the uncertainty and it is therefore interesting to investigate the European Court of Justice’s approach to this issue. EU public procurement law does not regulate the issue of control bids and the analysis shows that the control bid is not covered by directive 2004/18/EC, which regulates the procedures for the award of public works contracts, public supply contracts and public service contracts. However if the public au-thority wants to use the control bid as the reason for annulment, the control bid must be equally treated to such an extent that it is clear that this is the best bid/option. The economic side of the thesis illustrates the societal dead weight loss resulting from the fact that some public authorities put out a sham tender in order to be inspired or simply just to force the internal or-ganization to be more effective. It is investigated, and concluded that the Danish regulation about control bids is not enough to solve the problem. The access to annulment is too wide, and with too many options. The issue therefore becomes a matter of limiting the number of annulment options in general. These limits are needed reduce the uncertainty and risk for the external suppliers. A recommendation to aggravate the legislation access to annulment is made. The proposition could be to pay tort to the supplier who would have won if the authority could have avoided the annulment with-out unreasonable effort spent.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2015
Number of pages87