Mulighederne for innovation i konkurrencepræget dialog: En analyse af den nuværende og fremtidige rækkevidde af forbuddet mod forhandling

Simon Fischer & Jonas Ruben Holm

Student thesis: Master thesis


English summary: The objective of this thesis is to examine the present reach of the prohibition of negotiation under the competitive dialogue procedure. It then examines the justification for EU-regulatory involvement on public procurement matters, and the economic effects of the procurement principles and rules on public authority’s ability to procure innovative solutions in the market. Finally, it examines the future role of the procedure, including its purpose, scope and potential for facilitating innovation moving forward. The analysis shows that the prohibition of negotiation stems from the European Unions desire to foster the internal market, a purpose embedded in the treaty itself. The prohibition derives from the principle of equality, which is a fundamental principle of Union law. Despite an overarching prohibition of negotiation during public procurement, there is ample opportunity for negotiations during the various stages of competitive dialogue. This is partly explained by the nature of the procedure itself, which is used exceptionally, in cases where the normal procedures will not allow for the award of the contract because of its complexity. The opportunities for negotiation and innovation are most prevalent during certain stages of the procedure, the first being before the procedure itself, during the study of the possible solutions in the market. The second opportunity is during the actual dialogue stage, where every aspect of the contract can be discussed. Finally, after the contract is awarded, the parties have moderate flexibility for negotiation. The analysis then establishes the negative implications of politically charged legislative measures on contracting; as such measures can severely hamper the contractual freedom of individuals in society, and the ability of individuals to pursue their own ends. Instead, legislation founded on the purpose of fulfilment of as many individual expectations as possible, is better suited to adapt to the dynamic order of society, and can better allow for the harnessing of dispersed information among individuals. Public procurement regulation is a legitimate instrument for overcoming externalities in the market, specifically nationalistic tendencies which can lead to inefficient contracts, but more effective means and opportunities for negotiation must be allowed, as the mutual sharing of information is a prerequisite for the creation of new and innovative solutions. Finally, the analysis advocates a shift in purpose from the promotion of the internal market to the facilitation of innovation, based on the legal and economic conclusions. The competitive dialogue procedure as a whole is a suitable procedure for procuring innovative solutions, but a wider scope for its application, not just as an exception, is needed. The new directive expands the procedure’s application to specifically include public procurement of design and innovative solutions, and also introduces a brand new procedure: the innovation partnership. The prohibition of negotiation is facing changes going forward, as the directive explicitly grants opportunities for negotiation, thereby relegating the prohibition to a general adherence to the principle of equality.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2014
Number of pages119