The Public Employer's Use of Communication in Relation to IT Procurements

Caroline Møller Nielsen & Klara Maria Rishøj Holm

Student thesis: Master thesis

Abstract

This Master thesis investigates how the Danish public organization can use communication as a tool to efficiently solve subsequent circumstances in connection with the procurement of specially developed software.
The thesis starts off by examining which opportunities the Public Procurement Act provides for the Danish public organization to communicate with potential tenderers before and during the tender process. The flexible tendering procedures give the public organization the widest access to communicate with potential tenderers. Next, the thesis investigates whether the Public Procurement Act allows for subsequent changes to contracts after their conclusion, and it is concluded that the law provides access to a relatively wide opportunity for subsequent changes. Then, the thesis examines what obligations the parties have according to the Danish background rules and K02 in relation to communicating about matters in the contract. Particularly relevant is the duty on the parties to act loyal, which includes communicating about matters that affect the conclusion or fulfillment of the contract.
The next part of the thesis creates an economic basis. More specifically, the thesis examines various contract theories, which deal with the influence of communication on contractual relationships and the handling of subsequent circumstances. The main theme in the theories reviewed is that the contract acts as a reference point for the parties. A party will punish the counterparty, if the counterparty when subsequent circumstances occur acts in a manner which causes the party to be below its reference point. According to the theories, this will only happen when the contract is flexible which means that it allows for the parties to negotiate and compensate each other in the event of subsequent circumstances. The theories prove that the parties through communication before the conclusion of the contract and during the course of the contract can create a common goal with the result of less punitive behavior and thereby greater profits. In addition, the theories prove that it is efficient to incorporate a formal duty of loyalty and structured communication processes into the contract.
On the basis of the economic theories, the thesis finally gives some recommendations on how the public organization within the legal framework through concrete solutions can incorporate structured communication processes with the tenderers before, during and after the tender process. In addition, a proposal is made as to how a duty of loyalty can be incorporated into the contract in order to support the development of a common goal and thereby better outcomes.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2020
Number of pages95
SupervisorsKim Østergaard