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Recent Experiences with the CD Procedure in the UK

Explore the history, aims, and legislation of the CD procedure in the UK, along with early experiences, current position, and suggestions for improvement. Presented by Jonathan Davey, Partner at Addleshaw Goddard. (500 characters)

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Recent Experiences with the CD Procedure in the UK

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  1. Recent Experiences with the CD Procedure in the UK Jonathan Davey, Partner, Addleshaw Goddard 25 April 2008

  2. Structure of this session • History in UK • Aims of CD • Shape of UK legislation • Early UK experiences • Current position • Some suggestions

  3. History • PPP in UK since 1990’s • Manchester Metrolink Project • Historically no CD Procedure • Competitive Negotiated Procedure used • “Prior overall pricing” ground • Challenge to use of Negotiated Procedure • Pimlico Schools • Norwich Airport

  4. Aims of CD • Provide a flexible procedure suitable for complex PFI/PPP projects whilst minimising risk of distortion • Outcome is a compromise • Considerable negotiation required to deliver complex projects • Fear that negotiation aids national or other preferences • A practitioner’s view (and separate handout)

  5. Shape of UK legislation • Subordinate legislation • Four sets of regulations replaced by just two with effect from 31 January 2006: • Public Contracts Regulations 2006 • Utilities Contracts Regulations 2006 • Remedies Directive

  6. Early UK experiences • Significant number of OJEU advertisements placed referring to CD even before UK implementation • Large number of existing projects continue using Negotiated Procedure • Personal experience – 2 urban regeneration CD adverts prior to UK implementing Regulations

  7. Current position • Almost universal replacement of Negotiated Procedure by CD • CD in name but not in substance? • Frequent pitfalls: • Lazy use of NP documentation/procedures • Failure to define needs and requirements • (still) failure to get Evaluation Criteria and Weightings right (and see Lianakis case) • Poor control of/use of dialogue phase • Uncertainty around closing dialogue • Insufficient development of terms prior to ITT, leading to need for post-PB negotiation going beyond “clarifying and confirming commitments”

  8. Some Suggestions • Early work (planning, modelling, team structuring) pays later! • CD is a process of communication, not a set of documents • Share experiences; use resources; promote best practice • Bidder skill; challenge culture (in UK now; in CZ tomorrow?) • Be flexible; ensure your documents allow it • Maintain momentum but try to resist external deadline pressure

  9. Any questions?

  10. Recent Experiences with the CD Procedure in the UK Jonathan Davey, Partner, Addleshaw Goddard 25 April 2008

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