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Understanding Dialogue vs. Negotiations in Commercial Interactions

Explore the nuances between dialogue and negotiations in commercial dealings, including similarities, differences, potential difficulties, and advantages. Delve into the UK experience and Commission view on engaging with participants effectively.

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Understanding Dialogue vs. Negotiations in Commercial Interactions

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  1. Dialogue vs Negotiations: is there any difference? Jonathan Davey, Partner, Head of Commercial Group, Addleshaw Goddard 25 April 2008

  2. Definitions “Dialogue”: conversation, talk, chat, gossip, communication, exchange of views “Negotiation”: bargaining, conference, talks, discussion, haggling, wheeling and dealing Art. 29 “…dialogue the aim of which shall be to identify the means best suited to satisfying the [Authority’s] needs” Art. 30 “negotiate with tenderers the tenders submitted by them in order to adapt them to [the Authority’s] requirements”

  3. Tentative thoughts – similarities and differences • UK experience – some authorities “sleepwalking” along Negotiated Procedure lines • Commission view: • individual dialogue with participants “one-on-one” on basis of their ideas and solutions (- couldn’t it be more/better?) • Authority may ask for written proposals “possibly in the form of progressively completed/refined tenders” • must down-select on basis of written documents event if they do not contain all elements required in final ITT responses

  4. Tentative thoughts – similarities and differences (2) • Front-loading of costs for bidders? • all bidders need to respond in detail on all aspects at ITT stage if not earlier • a full response to the ITT will entail advice of lawyers on contract terms and probably other professionals • Pressure to reduce number of solutions/bidders • Will funders commit? Will they focus late and require changes going beyond clarifying/confirming commitments?

  5. Some potential difficulties in Dialogue stage • Some of these have already been considered: • confidentiality and “golden nugget” • “innovative dictatorship” • avoiding “claim staking” – refer to as much information as possible in ITPD? • failing to provide for successive stages • reducing solutions rather than bidders

  6. Some potential difficulties in Dialogue stage (2) • Some others: • having to use Final Award Criteria to down-select • score the pessimist or the optimist? • “touchline” participants • when to stop dialogue? • “each way” bets (multiple tenders) • payments to bidders and national precedent • “one-way” bid development?

  7. Potential advantages to be maintained • Competitive pressure up to a late stage – how to keep bidders keen! • Possibility of considering several means of achieving objectives: • bond vs conventional funding • joint venture/shadow toll/service provision • tunnel/bridge/ferry • Express right to make payments to keep process going

  8. Any questions?

  9. Dialogue vs Negotiations: is there any difference? Jonathan Davey, Partner, Head of Commercial Group, Addleshaw Goddard 25 April 2008

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