Ramavtalsinstitutet under luppen - En utredning med fokus på regelverkets betydelse ur ett konkurrensperspektiv

Sammanfattning: Swedish legislation on public procurement is based on EU-directives. The basic idea behind the public procurement directives is to protect the freedoms derived from the regulation of the internal market and to contribute to effective competition in which contracting authorities from different Member States should be able to compete for public contracts on equal terms. A contracting authority that can not determine the volume and timing of future acquisitions of supplies, services or works can conclude framework agreements in accordance with the rules of public procurement. In Sweden it is possible to settle three different types of framework agreements. The first is an agreement with one supplier where all conditions for the award of contracts are set, the second is a framework agreement with several suppliers in which all of the conditions for the award of the contract is established and the third is a framework agreement with several suppliers in which the award is made on the basis of a renewed competition. Framework agreements may as a main rule only run for a period of four years if there are no special reasons related to the subject of the contract. The absence of relevant case law from the ECJ means that the legal situation may be interpreted on the basis of national judicial decisions. The new Public Procurement Directive, which comes into force 2016 is, regarding the framework agreements provisions, in particular intended to clarify various aspects of the legislation. Among other things, new rules regulating permissible and impermissible changes to contracts and framework agreements. A possibility to both award contracts by the application of the terms in the agreement and by renewed competition, based on a multi-provider framework agreement in which all the terms are laid down, is also introduced. The conclusion after examining the legal situation is that there is a need for more precedents regarding the allowed duration of framework agreements. The Swedish administrative courts should generally adopt a more open mind when it comes to request for preliminary rulings from the ECJ. It also deems necessary to further clarify certain aspects of the legal framework, for an example regarding the definite difference between framework agreements and regular procurement contracts. If contracting authorities and economic operators do not understand the available legal framework and how to use it may cause undesirable restrictions of competition.