En Retspolitisk Analyse af Konkurrencekravet i Tilbudslovens § 2, stk. 2

Nikolaj Sigvard & Sune Bjørn Nancke

Student thesis: Master thesis

Abstract

The purpose of this thesis is to provide a legal policy analysis of the obligation for the procuring authority to ensure adequate competition throughout the tendering process cf. tilbudslovens art. 2(2). This obligation to ensure adequate is only applicable to public works contracts and represents a principle in Danish procurement law. A competition-principle is innovative compared to the Procurement Directives. In order for the thesis to provide scientific basis for proposing amendments to the current regulation, the legal policy analysis is anchored in a legal and economic analysis of the ‘competition-obligation’. The main focus of the legal analysis is understanding the legal content of this obligation, and what is meant by adequate competition. The perspective of the legal analysis is domestic procurement law, why EU-law such as the Procurement Directives, only is included when this is necessary in order to understand the legal content. The legal analysis finds that the competition-obligation sometimes holds an independent legal significance, e.g. when assessing how many bidders the contracting authority should invite to compete for the contract. It also finds that the obligation in some situations is secondary to principle of equal treatment. The objective of the economic analyses is to assess whether the current regulation is efficient based on the theory of Wealth Maximization created by Posner. The economic analysis is divided into three sections. First section of the economic analysis concludes, that there is a positive correlation between the amount of competition in the procurement process and the incentive to create public goods amongst the bidders. Next section finds that subjecting the public authorities to procurement-regulation is justified as means of ensuring economic efficiency but that subjecting private authorities is not. Last section analyses which efficiency-considerations legislator has had in mind when formulating those provisions that restricts the application of the obligation to ensure adequate competition. The legal policy analysis concludes based on the legal and economic analysis that the current regulation of the competitive pressure in the tendering process based on the competition-obligation in some instances is inefficient and recommends a number of broad amendments and models. If implemented these recommendations will provide a better basis for the creation of economic efficiency in Danish domestic procurement law and a more efficient design of the obligation to ensure adequate competition.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2014
Number of pages117