This thesis examines the coherence between framework agreements in EU public procurement directive (directive 2004/18/EC) and the use of partnering. The concept of partnering is explained in order to compare this to the EU public procurement directive's rules on framework agreements. Partnering is based on a high degree of negotiation between the parties and on trust, corporation, open books, joint utility and positive incentives. Partnering is normally not limited to a specific project but involves a long term relationship between the two parties. The EU public procurement directive limits the duration of the framework agreement to four years unless a longer duration can be duly justified by the subject of the framework agreement. The use of partnering cannot justify this exception and therefore the duration of the framework agreement will be limited. This has a negative impact on the parties' incentives to cooperate which is illustrated by the use of a game theory analysis. Due to the restrictions on amending a framework agreement, the thesis finds that it is impossible to obtain the level of negotiation and flexibility partnering consists. However it is possible to secure a certain level of negotiation and flexibility by using revision clauses and functional requirements. The economic value of three types of agreements is analyzed: normal framework agreements, framework agreements containing partnering and partnering not restricted by the EU public procurement directive. This is done by using an Edgeworth box model and Williamson's theory on transaction cost. The conclusions from the legal and economic analyzes is combined in a model inspired by the prisoner's dilemma. The model contains the different levels of negotiation under the three types of agreements which the parties are willing to and able to achieve. It is shown that partnering is superior to the two other kinds.
|Educations||MSc in Commercial Law, (Graduate Programme) Final Thesis|
|Number of pages||89|