Grith Skovgaard Ølykke

On Actual and Percieved Monopolies

A dataset on the use of transparency notices by Danish contracting authorities is analysed. Focus is on reliance on technical reasons to justify the use of the negotiated procedure without prior publication of a contract notice. It is found that technical reasons are for the major part used to procure medical equipment primarily for hospitals, and that the technical reasons relied on in the majority of cases may be categorised as product characteristics and compatibility/interoperability grounds. There are also certain indications of a market characterised by selective distributions agreements, a pattern which may explain that most of the contracts are awarded to companies established in Denmark. It is concluded that, even if the CJEU would acknowledge product characteristics and compatibility/interoperability as technical grounds, it is questionable whether it would accept that on these grounds the contract could only be fulfilled by one particular economic operator. The hypothesis that transparency notices and the sanctuary from ineffectiveness would imply that direct contract awards are fitted into the justifications provided for in the Public Procurement Directives cannot be conclusively supported or rejected on the basis of the examined dataset.