Dansk Udbudsret i EU-retlig kontekst: Fleksible udbudsformer efter direktiv 2014/24/EU, Udbudsdirektivet, og Lov nr. 1564 af 15/12/2015, Udbudsloven, om offentlige udbud

Abstract

This thesis presents an investigation of the legal restrictions, in relation to the prohibition of negotiation, derived from general principles of equal treatment and transparency, within the public procurement procedure in the European Union, along with an analysis of the economic effects of current regulation. The analysis of Directive 2014/24/EU, on public procurement, and the Danish law on public procurement, along with relevant interpretation measures, presents an answer to the question regarding the degree to which, negotiation and communication between contractors, under selected procurement forms, is allowed under current public procurement regulation. The analysis finds that current regulation restricts the use of flexible procurement forms, which allows for a certain amount of negotiation and communication. Ultimately, this tendency leads to construction of inefficient procurement procedures. The inspection of game theory, P/A theory, transaction cost theory and the Edgeworth box framework, in relation to public procurement, presents an analysis, from which, the contractual value, derived from the application of flexible procurement measures, is determined. The analysis concludes the situations, in which, contactors profits from the use of flexible procurement measures, along with an overview of conditions that should be satisfied, in order for negotiation and communication, to generate value. Ultimately, the legal restrictions and the economic possibilities are combined in an analysis, which presents an answer to the question of how to construct efficient procurement contracts under lex lata. Further, the theory is examined, through the application of above economic theories, on a specific procurement procedure, provided by a public principal. It is hereby found that the economic rationale, to a certain degree, provides the ability to create added value, due to the application of flexible procurement measures. Finally, it is concluded that the prohibition of negotiation has a substantial negative influence on the efficiency of public procurement procedures in the European Union, why flexible procurement measures must be encouraged.