Safeguarding competition and equal access to Central Purchasing Bodies’ agreements
The research project will investigate and analyse whether central purchasing bodies’ agreements are safeguarding the aim of the procurement rules and find new ways of creating competitive and flexible agreements.
Central purchasing bodies (CPBs) conduct procurement procedures on behalf of other contracting authorities. Aggregated procurement can lead to better prices and quality for contracting authorities and ultimately for the tax payers. On top of this, the individual contracting authority will save a significant amount of transaction costs by not conducting procurement procedures themselves. However, this type of purchasing have often preferences for contracts with a single supplier in order to lower transaction costs, and this puts economic operators in a position in which they need to work together in order to be able to bid for the agreement – and such cooperation can be seen as an anticompetitive agreement (Art. 101 TFEU). Other potential negative effects of aggregation are linked to excessive concentration of purchasing power and collusion, as well as a reduction of market access opportunities for SMEs. This research project seeks to clarify the rules and analyse how competition can be ensured.
The project is divided into 4 work packages:
WP 1: CPB perspective
WP 2: Undertaking and market perspective
WP 3: User perspective
WP 4: Parallel agreements
Mario Comba, president of the CPB Piedmont Regional Purchasing Authority,
Åsa Edman, Head of legal at SKL (Swedish CPB),
Kenneth S. Jensen, Head of Office at the Danish Competition and Consumer Authority,
Laura Svaneklink, Senior policy adviser at the Confederation of Danish Industry (DK),
Peter M. Kring, Head of Legal, SKI.
WP1: CPB perspective: Laying down a comprehensive assessment of CPBs’ types of agreements and their legal set up, including the potential for taking into account environmental and social considerations.
WP1 consist of a PhD project, which aims at locating which agreement is the ideal agreement for specific purchases by CPBs. The research will focus on the legal rules for setting up different types of agreements and analyse how competition and equal treatment can best be ensured in these agreements It will also assess the possibility for taking environmental and social considerations into account, and how this can be done while at the same time maintaining competition and equal access to the agreement.
WP1 also includes a two-day international conference on “CPBs Agreements” and a one-day PhD workshop in extension to the conference.
WP 2: Undertaking and market perspective: Assessing how the CPBs’ agreements affect competition on the supply side.
This part of the research project will focus on competition, when contracting authorities use CPBs and create large- scale procurement. Aggregated procurement allows CPBs to exercise buyer power vis-à-vis economic operators, which may thwart the competitive process and lead to infringements of EU competition law due to abuse of a dominant purchasing position (Art 102 TFEU), or even of anticompetitive agreements (Art 101 TFEU). The focus of this research project will be competition on the supplier side, where the use of CPBs risks closing the market, in particular for SMEs, due to the difficulty of meeting the tender requirements for such large contracts.
WP2 will consist of a 2 year position for a post.doc with the topic: Ensuring Supply Side Competition for CPBs agreements. The post.doc will analyse the current legal framework for utilizing joint bidding in CPBs procurement procedures, including the possibility for undertakings to enter into sub-contracts after the tender procedure
WP 3: User perspective: Clarifying the potential risks for the users of a CPB and assess how flexibility can be ensured in CPBs’ agreements.
This part of the research project is important for the trust and use of CPBs, and aims to reduce the risk contracting authorities have when using a CPB. The recent CJEU case C-216/17, Autoritá, has sowed doubts in relation to several aspects of CPBs’ agreements and questions have been raised as to who are able to use the framework agreements, how precise an estimate of the purchase on a framework agreement must be specified beforehand and what the consequences are of reaching the maximum estimate. This part of the research projects seeks to provide answers to these essential questions.
Exploring the relationship between CPBs’ agreements and contracting authorities’ own agreements (so called parallel framework agreements).
In areas with no mandatory requirements to use an agreement of a CPB, each contracting authority is, in principle, free to establish its own framework agreement. Many contracting authorities are at the same time also users of a CPB, and in this regard they have two agreements available for the same type of purchases – parallel framework agreements.
WP4 consist of a PhD project, which aim to answer the research question: When and how it is possible to create parallel framework agreements and whether establishing such is beneficial for the competition.
2 ph.d. students and 1 post.doc from September 2021.
Safeguarding competition and equal access to Central Purchasing Bodies’ agreements has received a four year funding of 9,4 mill DKK from Independent Research Fund Denmark (Sapere Aude: DFF-Starting Grant and DFF Inge Lehmann).
Project: Projects: Safeguarding competition and equal access to Central Purchasing Bodies’ agreements & Parallel framework agreements
(Case number: 0167-00031A Sapere Aude & 0167-00032A Inge Lehmann).
Period: 01-01-2021 – 31-12-2024
PI Associate Professor
Carina Risvig Hamer
South Campus, Building: 6B.3.21
DK 2300 Copenhagen S
Phone: +45 35 33 03 67