From a competition law perspective, exclusivity clauses in vertical supply chains often require careful deliberation. But does the same hold true within the realms of public procurement?
Across the European Union, public authorities are spending nearly € 2 trillion a year on purchasing various goods, works and services. To prevent the misuse of public means within the Union – but also to promote competition and strengthen the free movement of goods and services – the EU maintains a set of procedural rules for public procurements in the member states, notably through the Public Procurement Directive (2014/24/EU). In Sweden, those rules have been implemented primarily through the Public Procurement Act (2016:1145).
EU law contains general rules on certain types of procurement contracts, e.g. framework agreements with one or several suppliers (see article 33 of the Directive). These rules do not aim to govern the contractual relationship between the contracting entity and the supplier, but rather the contracting entity’s discretionary powers and its responsibilities towards the public. In essence, the procurement rules are largely concerned with pre-contractual issues.
Despite the abovesaid, there has been an ongoing discussion in Sweden as to what extent procurement legislation may have bearing – be it directly or indirectly – on the contractual obligations of the respective parties and the interpretation of the procured agreement.
One particular issue that has arisen in Swedish case law during the past few years is whether the procurement of a frame agreement with one single supplier, as set forth in Article 33 of the Public Procurement Directive, binds the contracting authority to purchase the goods and services concerned from that supplier only. In other words: may a duly contracted single supplier also claim contractual exclusivity?