Dealing with legal loopholes and uncertainties within eu public procurement law regarding framework agreements
| DOI | https://doi.org/10.1108/JOPP-16-04-2016-B004 |
| Published date | 01 April 2017 |
| Date | 01 April 2017 |
| Pages | 505-527 |
| Author | Marta Andrecka |
| Subject Matter | Public policy & environmental management,Politics,Public adminstration & management,Government,Economics,Public Finance/economics,Texation/public revenue |
JOURNAL OF PUBLIC PROCUREMENT, VOLUME 16, ISSUE 4, 505-527 WINTER 2016
DEALING WITH LEGAL LOOPHOLES AND UNCERTAINTIES
WITHIN EU PUBLIC PROCUREMENT LAW
REGARDING FRAMEWORK AGREEMENTS
Marta Andrecka*
ABSTRACT. Provision on framework agreements has been introduced into
European Union (EU) Law in 2004. Since then framework agreements
have gained popularity and importance on the European Union (EU)
public tender market. Nevertheless, the use of frameworks poses significant
legal challenges necessitating the clarification of the governing rules and
the introduction of further guidelines. Unfortunately, clarifications were not
fully provided in the new Directive 2014/24/EU. This article is a study
of legal loopholes and uncertainties that occur during public procurement
of framework agreements as a result of current EU rules and national
practices in Denmark and the United Kingdom. The article highlights the
need for clarification of the existing rules and introduction of transparency
to the subsequent call-off stage of framework agreements. To achieve
study aims, three methods were applied: a doctrinal analysis, a small
scale comparative law research and field research based on qualitative
research by the means of semi-structured interviews.
INTRODUCTION
A framework agreement in the context of EU public
procurement law means an agreement between one or more
contracting authorities and one or more economic operators, the
purpose of which is to establish the terms governing contracts to be
awarded during a given period, in particular with regard to price
and, where appropriate, the quantity envisaged. The difference
between a public contract and framework agreement is that a
framework is an agreement with supplier or suppliers to establish
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* Marta Andrecka, Ph.D., is an Assistant Professor, Centre for Enterprise
Liability, Faculty of Law, University of Copenhagen, Denmark. Her research
interest is in EU public procurement.
Copyright © 2016 by PrAcademics Press
506 ANDRECKA
terms governing contracts that may be awarded during the life of
the agreement. In other words, a framework agreement sets out the
overarching terms and conditions for making specific purchases (call-
offs).
Provisions on framework agreements were introduced to EU
public procurement law for the first time in 2004. Since that time
they became well established and a key element of public sector
procurement in several countries including the UK, Denmark, France
and Sweden.
In the UK central government spends over 10 billion pounds via
framework agreements, while a third of public procurement in
Denmark is concluded through framework agreements. Frameworks
are very convenient; they allow contracting authorities to avoid
lengthy EU procurement processes each time they want to place an
order. Also, they can bring commercial benefits by aggregating
buying power and help manage risk by a multitude of suppliers. At
the same time, framework agreements have been criticized as a
procurement technique which has the potential to be pro-collusive
(bid-rigging), close the market to the competition, limit access of
small and medium enterprises (SMEs) to public tenders, and is
used for administrative simplicity over efficiency or being the best
possible solution for achieving value for money (Sanchez Graells,
2015; Arden, 2013). Despite framework agreements becoming more
popular than ever, there are still relatively few legal studies carried
out on this topic and even fever sources regarding case law on
resulting issues. Because of this, the author opted to conduct
interviews with relevant stakeholders to discover how framework
agreements are implemented in practice and what challenges and
legal uncertainties they pose.
Following a brief conceptual framework, the research
methodology is described. Then presented is the analysis of the
findings. The article is concluded with a synthesis of findings and
recommendation for further legal development.
CONCEPTUAL FRAMEWORK
Research was carried out between 2013 and 2015. During
that time Public Sector Directive 2004/18/EC was in power, though
the new proposal for the revision of it had been already published,
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