Partnering i EU udbud: En vej til værdiskabelse for den offentlige sektor

Abstract

This thesis investigates the legal restrictions by the prohibition of negotiations in the EU public procurement directive and the possible use of partnering in public procurement law. By analyzing the EU public procurement directive I investigate the possibility to use partnering as a procurement contract. One of the main elements in the partnering contract is the possibility to negotiate. In the public procurement directive there is a general prohibition of negotiations conducted from the two general principles og equal treatment and transparency. I find that these two principles and the prohibition of negotiations combined makes partnering impossible to use in EU public procurement. I analyze the economic value of three kinds of contracts, a tradition agreement, procurement with competitive dialogue and partnering to see which one secure an optimal contract on the background of asymmetrical information, based on the Principal Agent theory. The use of procurement with competitive dialogue is used, because it is the most willing type of contract to allow partnering. With a combination of Principal Agent theory, game theory and microeconomics I find, that partnering is superior to the other two contracts because of the negotiations in the process of the contract and the ideas behind engaging in a partnering contract. I finally combine the legal and the economic issues in an integrated law and economic perspective. Here I use a model inspired by the classical prisoner’s dilemma matrix. I expand the model to get a more accurate output and use it to analyse the legal background of the prohibition of negotiations in the EU public procurement directive in a context of the economic results from the economic chapter. Here I conclude that even if the prohibition of negotiation serves to uphold a social economic market structure, it undermines the possibility for the public sector in the EU to obtain and use the much more efficient contract, partnering. Therefore I conclude that the prohibition of negotiation has a large negative economic influence on the public procurement contract regarding the possibilities with the use of negotiations in a partnering context.