Ramavtalets civilrättsliga verkan. Frågor om avtalstrohet och osund strategisk anbudsgivning

Abstract

The purpose of this thesis is to examine the nature of framework agreements in public procurement in Sweden. The main question is whether a contracting authority is obligated to place orders under a framework agreement when purchasing a product or service that is covered in that agreement and to what extent a contractor is obligated to accept such orders. If the answer to that first question is that an obligation does exist the next question to arise is what kind of consequences to expect when either party fails to meet that obligation. Of great importance is whether a contracting authority that hasn’t used an existing framework agreement is liable to pay damages to the contractor who according to the agreement had a right to deliver. A summary of the results is that the answers to all of the questions depend on what type of framework agreement that is used, whether it’s a contract that has one or several contractors and if all the terms for future contracts are specified. Framework agreements with only one contractor and where all the terms for future contracts have been established are very similar to normal public contracts, which means that it would make sense to use the same set of rules. In this case it’s therefore likely that both parties are obligated by the framework agreement and that failure to live up to these obligations can result in liability. A framework agreement with several contractors where all the terms are not established and where contracts are awarded only after a renewed evaluation of tenders is on the other hand quite different from a public contract. One should therefore not be surprised to find that other rules may apply. Unfortunately I have been unable to give definitive answers to most questions because the available sources are too limited. This thesis is therefore a call to the legislator to clarify and also a call for the increased understanding of, and improved statistics regarding, framework agreements that is necessary to improve public procurement.