Section 185 (2) of the Danish Public Procurement Law: Contracting Authorities' Obligation to Terminate a Turn-Key Contract

Aya Oozeer Riis & Sandra Clemmen Christensen

Student thesis: Master thesis

Abstract

This Master thesis deals with section 185 (2) of the Danish Law of Public Procurement, which entails a duty for contracting authorities to terminate the public contract in case his decision of awarding the public contract to the winning tenderer is set aside, unless exceptional circumstances are evident. This Master thesis investigates the law in force of section 185 (2) of the Danish Law of Public Procurement provision. Furthermore, the thesis analyses the contracting authorities´ rational behaviour in case the provision is initialized. Subsequently, the thesis investigates whether the rational behaviour of the contracting authority is in accordance with the objectives of the provision and public interest, and whether the rule should be interpreted different to ensure efficiency for the public. The thesis’ analysis is based on construction law, in particular turn-key contracts, because the economic effects on these contracts are expected to be extensive in this area of the law. The analysis concludes, that the rational behaviour of the contracting authorities is not in accordance with the objectives of section 185 (2) of the Danish Law of Public Procurement. The contracting authorities will exercise the available first exception to the rule of termination, which permits a continuing of the contract because exceptional circumstances can be argued. Furthermore, the analysis concludes, that the contracting authorities´ rational behaviour will be efficient for the public, only when they exercise the second available exception of continuing the contract, where the contracting authorities pays damages to the loosing tenderer. However, the second exception has a narrow scope of application, why a new interpretation of the exception is more efficient for the public and in accordance with the objectives of the provision. A new interpretation of the second exception should allow the contracting authorities to pay damages to the loosing tenderer through choice. The analysis thereby concludes, that the first exception of continuing the contract regarding exceptional circumstances, prevents the contracting authorities to behave in accordance with the objectives of the provision and in the interest of the public.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2018
Number of pages170