Notes from conference on Framework Agreements

As promised last week, the Conference on Framework Agreements organised by my good friend Dr. Marta Andrecka at the University of Aarhus, produced some interesting food for thought. Personally, I am very much a fan of small conferences with a limited number delegates (20-40) talking about a specific topic. Nothing like getting a few people from different countries with similar problems talking about their experiences. In larger conferences (200+) it is easy to get lost in the myriad of threads and talks.

So what did I learn from the day?

1. Competition is a key issue for framework agreements

Not really a new issue for me, but it is heartening to see others with similar concerns to mine about the impact of framework agreements in competition, particularly foreclosure of markets for small firms.

2. Binding vs non-binding nature of framework agreements

This was unexpected. By looking at Directives 2004/18 and 2014/24 and practice here in the UK with its hordes of zombie (unused) frameworks I assumed that framework agreements were non-binding, that is a contracting authority could just as easily buy from another source. Turns out that under Swedish contract law framework agreements are binding. This is probably connected with the nature of the framework agreement itself: is it a contract or not, whose answer probably depends on applicable national contract laws.

The possibility of having parallel framework agreements for the same subject matter was also raised here (and in connection with competition issues) and again, it seems answers vary from country to country.

3. Are they more similar to award or selection stage?

Once more, probably connected with the nature of framework agreements. Abby Semple argued that due to the need for award criteria to be used during set up and the possibility of relying on Article 72 of Directive 2014/24, framework agreements are more akin to an award than a selection stage. I would add that if that is the case then, that in consequence they needed to always have a contractual nature, which poses some issues in certain national contract laws (ie England and Wales, where consideration is necessary for the existence of a contract). My view, is that they effectively constitute a selection stage albeit one where award criteria are used, unless we are talking about single supplier, binding framework, with all the contractual details set in advance.

4. How do we define contract value?

Another issue that touched by multiple jurisdictions is the definition of contract value. This appears to be particularly problematic in countries where frameworks do not have a binding nature and/or countries where contracts can be extended beyond the duration of the framework.

If you are interested in my presentation, you can download the PDF from the presentations page.