Offentlige ordregiveres reaktionsmuligheder over for en misligholdende leverandør ved kontrakter om komplekse it-systemer: En analyse af ordregivers muligheder for anvendelse af henholdsvis obligationsretlige misligholdelsesbeføjelser og strategisk kontrahering

Line Bøye Christensen & Karl Kristoffer Pandell

Student thesis: Master thesis

Abstract

The purpose of this thesis is to examine to what extent it is possible for public contracting authorities in contracting matters regarding complex IT-systems to apply remedies for breach of contract over a supplier, who has failed to perform what was agreed upon. Furthermore, it is examined in the thesis whether the public contracting authorities can use strategic contracting to reduce the risk of the supplier’s breach of contract, in accordance with the rules of public procurements. The analysis is based on the specific case regarding “Sundhedsplatformen”. It is initially concluded in the thesis that, as it is essential for the contracting authority is to receive an IT-system which is free of deficiencies, the contracting authority practically only has the option of terminating the contract in the cases relevant to the scope of the thesis. Additionally, it is concluded that the public authority, due to the rules of procurement law regarding material changes to fundamental elements of the tender documents, can even be required to terminate the contract as a consequence of the breach of contract.
It is further concluded in the thesis that it is an economically efficient solution for the public contracting authority to use strategic contracting with regards to contracts concerning complex IT-systems. This is e.g. due to the fact that the use of hardship clauses can reduce the risk of the supplier’s breach of contract. Furthermore, it is concluded that both parties will have an economical incentive to uphold the strategic contracting throughout the entire period of the contract.
In the last segment of the thesis it is concluded that the public contracting authority has to spend a disproportionate amount of transactional costs on purchasing an alternative IT-system, if it is forced to terminate the original contract. Furthermore, the rules of procurement law regarding material changes to fundamental elements makes it impossible for the public contracting authority to implement a hardship clause in the contract. As such, the current state of the law regarding remedies for breach and changes to fundamental elements is not economically efficient for public contracting authorities in regards to purchases of complex IT-systems.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2021
Number of pages123
SupervisorsSarah Maria Denta