The Public Procurement Fallacy - Why EU Public Procurement rules can counteract common goals of the Union

Detta är en Master-uppsats från Lunds universitet/Institutionen för handelsrätt

Sammanfattning: The area of public procurement has a significant financial impact on the Union market, proven by the fact that 18% of the Union’s GDP is spent by public authorities on resources that are regulated by the legislative framework surrounding public procurement. Such a significant spending therefore has the possibility of controlling the behaviour of the supply side on the market by demonstrating what public resources are preferably spent on. As a consequence, social and environmental responsibility among the member states has been given a strong position within public procurement as an effective tool to implement policies. However, this development has also encountered opposition, mainly from the Union itself otherwise supporting this kind of development. The opposition stems from the economical heritage that the Union is founded on. The area of public procurement was developed as one of many measures to maintain a fully functioning internal market, hence public contracts are meant to be awarded to the economically most advantageous tenders. Such a prerequisite ensures that there is competition between tenderers and the most competitive tenderer will therefore be awarded the contract. When taking social and environmental aspects into consideration, the lowest tender is seldom the tender that manages to include these considerations to the greatest extent possible. These aspects are discussed in this thesis, and continue to discuss to what extent the current public procurement system nevertheless can be used in order incorporate other considerations than economic ones, without breaching the same system. This subsequently leads to a conclusion on whether the current public procurement system enables not only the member state’s, but also the Union’s policies to be fully implemented. As will be shown, there is discretion to incorporate such non-economic policies, although to a differing extent depending on the specific contract to be awarded.

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