This thesis will concern itself with framework agreements with multiple products, and the specific problems which arise when dealing with this particular type of agreement. The public authorities procure a string of products on a daily basis, and these purchases are governed by the stipulations of the EUF Treaty, concerning the free movements of goods and the prohibition against discrimination based on nationality, as well as the Procurement Directive which regulates procurement procedures. During the past few years the tendency within the procurement sector, has moved towards an increase in coordinated purchases, where several municipalities and regions band together when performing these purchases. Furthermore it must be noted that the large majority of these purchases are carried out via framework agreements. A framework agreement can be useful, in situations where the contracting authorities are unsure of which volume of product is needed and exactly when these should be delivered. Framework agreements usually entail thousands of products and this thesis will amongst other things focus on the fact that the contracting authorities are often unable to provide a precise list of the products needed owing to the large array of different preferences within the group of contractors. The Danish system of appeals have come to realise that the before mentioned type of framework agreements exist, where it is not possible for the contracting authorities to define all the products. They have assessed that these agreements can adhere to the principles of the Procurement Directive, if they are defined via a representative product list upon which the offer can be defined and evaluated. However it is crucial that the contracting authorities make a clear demarcation of the type of products required, otherwise this type of framework agreement will be in contradiction with the principle of transparency. The kind of product definition previously mentioned does however leave room for uncertainty with regards to the subject matter of the contract, and seeing as the procurement concerns common-value elements, the representative product lists increase the risk of the winner’s curse, or an overcompensation of the winner’s curse, both of which have been assessed to be socially inefficient. Furthermore it can be noted that procurement of framework agreements takes place in an oligopolistic market, wherefore methods of evaluation where a smaller section of the products are evaluated will promote the implicit or explicit formation of cartels. This specifically concerns framework agreements with renewed competition, as this will not only reduce the number of tenders, but also enable them to identify each other, which are two important pre-conditions for the formation of cartels. Large framework agreements therefore encounter transparency issues, and thus increase the risks of price augmentations. The contracting authorities must therefore aim to work out the procurement material in such a way that the largest possible amount of products is defined. Thereby the evaluation methods will also encompass the largest possible section of products.
|Educations||MSc in Commercial Law, (Graduate Programme) Final Thesis|
|Number of pages||103|