ECJ clarifications regarding the maximum estimated value under the framework agreements

√     The framework agreement ceases its effects if the maximum estimated value is exceeded

Recently, the Court of Justice of the European Union (CJEU) issued a preliminary ruling providing important guidelines in respect of the framework agreements awarded based on the public procurement legislation (the Judgment), including, among others, to what extent the framework agreement can produce effects when the maximum estimated value is exceeded[1].

Main takeaways:

  • CJEU held that, in order to observe the principles of transparency and equality of treatment between economic operators, contracting authorities have the imperative obligation to state the total quantity/value which the subsequent contracts may comprise. This requirement is also a manifestation of the prohibition on using framework agreements improperly or in such a way as to prevent, restrict or distort competition.
  • Once the maximum value of products/services specifically indicated in the framework agreement has been reached, the agreement will no longer have any effect. Thus, the framework agreement cannot be used beyond the maximum value of purchases specified in that agreement at the start of the procurement process. The clarification is very important considering that, in practice, the contracting authorities and the economic operators had various interpretations in respect of the purpose of indicating the “maximum estimated value” of the framework agreement.
  • In light of the Judgment, except for the specific situations and conditions regulated in art. 221 of Law 98/2016 on public procurement and art. 235-243 of Law 99/2016 on sectorial procurement[2], the supplementation of quantities/values stipulated in the contract notice and the procurement documentation is not possible once that limit has been exceeded. In such cases, the contracting authority has the obligation to organise a new award procedure for this purpose.

[1] Judgment of 17 June 2021, Simonsen&WeelA/S vs. Region Nordjylland og Region Syddanmark, C-23/20.

[2] Providing, among others, for the situations where a framework agreement can be modified without the need to organise a new award process.

 

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