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Dialogue vs Negotiations: is there any difference?

Dialogue vs Negotiations: is there any difference?. Jonathan Davey, Partner, Head of Commercial Group, Addleshaw Goddard 25 April 2008. Definitions. “Dialogue”: conversation, talk, chat, gossip, communication, exchange of views

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Dialogue vs Negotiations: is there any difference?

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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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