Designing a Competitive Dialogue Procedure

1. Designing a Competitive Dialogue Procedure Jonathan Davey, Partner, Addleshaw Goddard 25 April 2008

2. Structure of this session • Introduction and definition • Formal requirements • Flowchart and timetable • Some thoughts on running a Competitive Dialogue procedure

3. Introduction “ a procedure in which any economic operator may request to participate and whereby the contracting authority conducts a dialogue with the candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting its requirements and on the basis of which the candidates chosen are invited to tender.” Article 1(11) of Directive 2004/18/EC

4. Competitive Dialogue – Formal Requirements • Competitive Dialogue not automatically available • “Particularly Complex Contract” • Technical/legal/financial (objective test) • Open or Restricted Procedure will not allow award • Are we sure that use of Competitive Dialogue procedure is justified? (Do not use bidders’ money to “roadtest” viability/structure) • Continued use of Negotiated Procedure? • Consider Restricted Procedure • Audit trail – why Competitive Dialogue?

5. CD PROCEDURE AVAILABLE? Successive stages of procedure possible to reduce number of solutions to be discussed. Only if CN/DD says so. Use Final Award Criteria only. Clarification/specification/ fine-tuning permis sible provided 'basic features of Tender/ITT' not changed Contract Notice (CN) detailing needs and requirements (Descriptive Document possible) (DD) Assessment of Tenders (NB: MEAT by reference to Award Criteria from CN/DD) cp End Dialogue when CA can identify solution(s) capable of "meeting its needs", if necessary after comparing them Down-selection as for NP and RP but minimum 3 suitable candidates Tenderer submitting MEAT may be asked to clarify/confirm commitments ITT based on those solution(s) Open Dialogue with down selected candidates CONTRACT AWARD Tenders submitted in response to ITT Competitive Dialogue (1)

6. Competitive Dialogue – up to issue of ITPD • OJEU Notice largely as for Restricted Procedure/Negotiated Procedure except: • Reference to Competitive Dialogue • Successive stages • STRONG RECOMMENDATION – ALWAYS PROVIDE FOR SUCCESSIVE STAGES! • Variants – interaction with Competitive Dialogue • Prequalification stage – as with Restricted/Negotiated Procedures • Minimum of 3 bidders invited to take part in Dialogue – issue ITPD to them

7. CD PROCEDURE AVAILABLE? Successive stages of procedure possible to reduce number of solutions to be discussed. Only if CN/DD says so. Use Final Award Criteria only. Clarification/specification/ fine-tuning permissible provided 'basic features of Tender/ITT' not changed Contract Notice (CN) detailing needs and requirements (Descriptive Document possible) (DD) Assessment of Tenders (NB: MEAT by reference to Award Criteria from CN/DD) cp End Dialogue when CA can identify solution(s) capable of "meeting its needs", if necessary after comparing them Down-selection as for NP and RP but minimum 3 suitable candidates Tenderer submitting MEAT may be asked to clarify/confirm commitments ITT based on those solution(s) Open Dialogue with down selected candidates CONTRACT AWARD Tenders submitted in response to ITT Competitive Dialogue (2)

8. Competitive Dialogue – Dialogue Phase • ITPD must include basic information. Supply further information reasonably requested • Very little detail in Directive as regards format of Dialogue • Aim of Dialogue – to identify and define the means best suited to satisfy the Authority’s needs • Successive Stages: • reduce number of solutions • must use Final Award Criteria • It is permissible to discuss all aspects of the contract with participants • Specific references to: • avoiding discrimination in providing information • respecting confidentiality

9. Competitive Dialogue – ending Dialogue and issuing ITT • Continue Dialogue until Authority can identify or more solutions capable of meeting its needs, “if necessary, after comparing them” • Inform participants; issue ITT

10. CD PROCEDURE AVAILABLE? Successive stages of procedure possible to reduce number of solutions to be discussed. Only if CN/DD says so. Use Final Award Criteria only. Clarification/specification/ fine-tuning permissible provided 'basic features of Tender/ITT' not changed Contract Notice (CN) detailing needs and requirements (Descriptive Document possible) (DD) Assessment of Tenders (NB: MEAT by reference to Award Criteria from CN/DD) cp End Dialogue when CA can identify solution(s) capable of "meeting its needs", if necessary after comparing them Down-selection as for NP and RP but minimum 3 suitable candidates Tenderer submitting MEAT may be asked to clarify/confirm commitments ITT based on those solution(s) Open Dialogue with down selected candidates CONTRACT AWARD Tenders submitted in response to ITT Competitive Dialogue (3)

11. Competitive Dialogue – Post ITT • “Clarify, specify and fine tune” provided no change to basic features of tender or ITT and no discrimination or distortion of competition • Evaluation • Post-Preferred Bidder: “clarify and confirm commitments” provided no modification of substantial aspects of Tender or discrimination or distortive effect • Award and Alcatel notice • Payments to bidders?

12. Some thoughts on running a Competitive Dialogue procedure • Timescales: hard to be prescriptive but do not shorten • Workstreams: develop a detailed workplan before OJEU • Ideally, all of the following should be done at the outset: • evaluation modelling, leading to criteria and weightings • draft PQQ, ITPD, (at least) Heads of Terms • What information do we have that should be shared with bidders? • What is our attitude to confidentiality? (“Golden Nugget” problem) • How to use successive stages and when? • Audit trail and information flow • Clarification

13. Any questions?

14. Recent Experiences with the Competitive Dialogue Procedure in the UK Jonathan Davey, Partner, Addleshaw Goddard 25 April 2008