An Italian local health and social institution, ASST Lake Garda, has awarded a contract for environmental sanitation, collection and waste management services to ATI Markas (the initial contract). The initial contract had a duration of 9 years, which began in February 2012 and expired in February 2021. The original contract provided for the possibility that one or more of the 18 healthcare facilities listed in the original contract could require ATI Markas to extend the contractual arrangements to meet the service needs of that buyer. ATI Markas would then conclude an independent contractual relationship with that purchaser under the same conditions as in the initial contract and for the remainder of the initial term of the contract. In a recent decision on the functioning of a Framework Agreement (FWA) in the health sector in Italy, the Court of Justice of the European Union (CJEU) addressed two issues: [2] Article 108(1)(b) of the PCR requires contract notices to be published in the contract search tool for contracts exceeding the « recovery » threshold awarded under the AFW. This is a non-European national requirement. Framework agreements have become a very popular instrument for public procurement in the European Union since their recognition in the 2004 Public Sector Directive. In the meantime, there has been much discussion about the need to offset the benefits that these agreements bring. These benefits include efficiency through economies of scale (as a single procedure can then be used to assign multiple contacts) and administrative efficiency. It is also important to take into account the risk associated with framework agreements, such as the significant risk to competition and the lack of transparency of the procurement procedure. This last point will be at the centre of this document. Throughout the article, the author argues that the rules applicable to framework agreements do not ensure sufficient transparency in the procurement procedure for tendering contracts. The CJEU confirmed that it is not necessary for contracting authorities that can access contracts under a framework agreement to be signatories to the original framework agreement themselves.

However, they must be clearly identified as potential beneficiaries in the tender documents. There must be an explicit reference to the possibility of renewing the agreement both to the potential beneficiary contracting authority and to any interested supplier. In this way, the principles of publicity and legal certainty and therefore transparency are respected. The CJEU noted that the obligation to be a party initially to a framework agreement applies only to economic operators. The CJEU stressed that the provision of information on the maximum potential quantity of contracts to be awarded is particularly important to ensure the transparency of FWAs, given that contracting authorities are not required to publish the results of procurement procedures for call contracts[2]. It also expressed concern that the possibility for contracting authorities not to indicate the maximum quantity could lead to an abuse of framework agreements by the artificial award of contracts. In addition, the ECJ considered that the publication of the potential quantitative limit prevents contracting authorities from abusing framework agreements or in a way that would prevent, restrict or distort competition. There was some discussion in the case about the correct classification of this agreement as a framework agreement, but the CJEU assumed that it was a framework agreement. Do all potential users of an FWA by contracting authorities have to be signatories to the original FWA at the time of its creation? In the present case, it was argued that there was no obligation to give an indication from the outset of the quantity of services that could be required under the FWA. It was also argued that, as regards the services required of potential beneficiary contracting authorities, it was sufficient to refer to the `usual requirements` of those authorities. . The CJEU confirmed that the contracting authority that sets up the FWA only has to make every effort to predict the value and frequency of monitoring contracts.

In that context, the reference to the `usual requirements` of a contracting authority, in particular for suppliers from other Member States, is not sufficiently clear. . European Economics: Political Economy & Public Economics eJournal Subscribe to this free journal for more articles on this topic See Relations at Aarhus University ]]> Citationformats Political Economy: Government Spending and Related Policies eJournal One of the 18 health facilities listed, ASST Valcamonica, exercised this option and signed a health services contract with ATI Markas. . . .