EU Procurement – competitive dialogue and case-law Norman Ballantyne Yousof Khan
Outline of session • BriefContext • What’s new • Competitive Dialogue • Main features • Differences to negotiated procedure • Recent case-law from the ECJ • “In house” procurement • Exempt, sub-threshold contracts and part B • Cover other topics in New Year – stand still, frameworks, environmental & social considerations, timescales & electronic means
Context – legal framework Major Rationalisation : • New EC directives (effective end January 06) • Public Sector Directive (2004/18/EC) • Utilities Directive (2004/17/EC) • New UK regulations (consultation, in force end January 06) • Public Contracts Regulations 2006 • Utilities Contracts Regulations 2006 • Treaty law and host of ECJ decisions • Directives on remedies being updated
Context - Key changes • Major changes in general law • Online buyer profile (Selling to.. guide; procurement plan) • Threshold values • Time limits • Specifications • Selection and award • Competitive dialogue procedure • Electronic procurement • Central purchasing bodies • Framework agreements • Sustainability (environmental and social considerations)
Comp Dialogue – Grounds for Use Authority considers restricted or open can’t be used and the contract is particularly complex Particularly complex means Authority is not objectively able to : • define the technical means… capable of satisfying its needs or objectives, or • specify either the legal or financial make-up of a project or both. Negotiated grounds – numerous but generally – overall pricing and inability to draw up specification.
Comp Dialogue - procedure • OJEU notice – new format • Award criteria& importance / weightingsin notice ordescriptive document • Selection of bidders (minimum of 3) • Dialogue with bidders to identify and define best means to satisfy needs • Commercial confidentiality, equal treatment etc • Dialogue may take place in stages (reference in OJEU notice) reducing number of bidders • Remaining number of bidders must be sufficient for genuine competition
Comp Dialogue – procedure (cont) • Final tenders (BAFOs) invited from remaining bidders on basis of identified solution • Clarification, fine tuning of tenders without distorting competition • Evaluation of tenders against award criteria • Identification of most economically advantageous offer • Notification of preferred bidder* • Further clarification and confirmation of commitmentswithout distorting competition • Mandatory standstill period* • Award of contract * Alcatel amendments
(old) Negotiated Difficult to satisfy grounds for use e.g. overall pricing specify award criteria by ITN Time limits fixed e.g. 37 days Competitive More easily relied upon grounds for use, but early days. Specify award criteria usually in OJEU / DD Time – same but must be reasonable in all circs + electronic to shorten Negotiated and Competitive Dialogue
(old) Negotiated Ability to negotiate Negotiation subject to equal treatment etc Successive stages – partly a creation Choice of MEAT or lowest price Competitive Ability to negotiate and refine up to call for tenders Negotiation subject to equal treatment etc Successive stages – overt Must use MEAT Negotiated and Competitive Dialogue
Negotiated Possible to not have a competition e.g. extreme urgency, repeat works etc No provision for expenses but was nothing to stop you Future EU enforcement A familiar procedure – why change Competitive Open tender required Expenses can be specified Less enforcement risk ? Fits better with current UK practice Negotiated and Competitive Dialogue
Competitive Dialogue Conclusions - early thoughts • CD not exactly the same but not a revolution either • Competitive - overall appears to be very flexible, bar EU cases • Competitive – better fit with what has actually been happening in UK • Competitive – untried / untested – will take a little while to bed down and likely to be issues of detail which arise • Negotiated reserved for exceptional cases ?