The Public Procurement Rules’ Ability to Handle Tenders About Complex It-contracts: About the Public Authority’s Possibilities for Making Changes in the Tender Material or Strategic Choices to Optimize the Tender Process

Timon Falch Jyrk & Christian B. Bredgaard

Student thesis: Master thesis

Abstract

This thesis will analyze to what extent the new EU-directive on Public Procurement (directive 2014/24/EU) can handle complex it-contracts, and how the situation has improved since the transition from the previous EU-directive on Public Procurement (directive 2004/18/EF). The thesis starts by making a hypothesis that the increased complexity of it-systems makes it so that the public authority no longer has the knowledge to acquire such systems efficiently, due to the public procurement rules. The hypothesis will be examined by first analyzing the legal rules that regulate the procurement process within the EU. This analysis is divided into three paragraphs, concerning different stages of the procurement process. It shows that there has been a relaxation of the requirements necessary to choose the more flexible procedures. The possibilities of negotiating are not relaxed in a significant way, which is due to the fact that the general principles of EU, still regulates the possibilities to make changes in the published material. In order to make the collective payoff as large as possible, it is necessary to minimize the transaction costs in the entire procurement process, which is shown to be done by choosing a flexible procurement procedure that will result in larger transactional costs, in the stages until contract closure, but will reduce the risks combined with the following contract, which results in smaller transactional costs in the contract stage. The lack of legal certainty has negative consequences for a risk-averse public authority, because the party will be overly cautious, which will decrease the efficiency of the contract. This thesis recommends moving the burden of proof from the public authority to the private party, and relaxing the interpretation of the general principle of equal treatment.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2016
Number of pages133