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PROCUREMENT PROCEDURES FOR THE AWARD OF CONCESSION/PPP CONTRACTS

PROCUREMENT PROCEDURES FOR THE AWARD OF CONCESSION/PPP CONTRACTS. PROCEDURES FOR THE AWARD OF CONCESSIONS PROCEDURES FOR THE AWARD OF PPP/CONTRACTS. Yves Allain France. « Concessions and Public- Private Partnerships  » Ankara, 10-11 March 2008.

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PROCUREMENT PROCEDURES FOR THE AWARD OF CONCESSION/PPP CONTRACTS

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  1. PROCUREMENT PROCEDURES FOR THE AWARD OF CONCESSION/PPP CONTRACTS • PROCEDURES FOR THE AWARD OF CONCESSIONS • PROCEDURES FOR THE AWARD OF PPP/CONTRACTS Yves AllainFrance « Concessions and Public-PrivatePartnerships »Ankara, 10-11 March 2008

  2. HOW TO AWARD A CONCESSION ?

  3. WHAT IS LAID DOWN BY DIR. 2004/18/EC ? • OBLIGATION TO PUBLISH A NOTICE IN ACCORDANCE WITH ART. 36(2) TO (8), AND STANDARD FORM DESCRIBED IN ANNEXE VII C • OBLIGATION TO RESPECT A MINIMUM 52 DAY TIME-PERIOD (TO BE EXTENDED IF NECESSARY : VISIT TO THE SITE OR ADDITIONAL INFORMATION NEEDED …) • POSSIBILITY TO REQUIRE THE CONCESSIONAIRES TO SUBCONTRACT A MINIMUM OF 30 % OF THE VALUE OF THE WORK OR TO REQUEST THEM TO SPECIFY THE PERCENTAGE THEY INTEND TO SUBCONTRACT • POSSIBILITY TO AWARD ADDITIONAL WORKS TO THE CONCESSIONAIRE THAT WERE NOT INCLUDED INITIALLY BUT, THROUGH UNFORESEEN CIRCUMSTANCES HAVE BECOME NECESSARY FOR THE COMPLETION OF THE CONTRACT AND CANNOT BE SEPARATED WITHOUT MAJOR INCONVENIENCE. THESE ADDITIONAL WORKS MAY NOT EXCEED 50 % OF THE AMOUNT OF THE INITIAL CONTRACT

  4. REQUIREMENTS OF THE CONTRACT NOTICE NO MENTION RELATING TO THE AWARD PROCEDURE TO BE USED AS SUCH THUS FREE CHOICE BETWEEN THE OPEN OR RESTRICTED PROCEDURE, OR THE NEGOTIATED PROCEDURE WITH PRIOR PUBLICATION OF A NOTICE, OR THE COMPETITIVE DIALOGUE BUT OBLIGATION TO SPECIFY THE CRITERIA THAT WILL BE USED

  5. REQUIREMENTS STEMMING FROM C-324/98(« TELAUSTRIA » CASE- 7th DEC 2000) THE COURT … HEREBY RULES : « 2. Not withstanding the fact that, as Community law stands at present, such contracts [=servicesconcessions] are excluded from the scope of Directive 93/38, the contracting entities concluding them are, noner the less, bound to comply with fundamental rules of the Treaty , in general, and the principle of non-discrimination on the ground of nationality, in particular, that principle implying, in particular, an obligation of transparency in order to enable the contracting authority to satisfy itself that the principle has been complied with.

  6. REQUIREMENTS STEMMING FROM C-324/98(« TELAUSTRIA » CASE- 7th DEC 2000) 3. That obligation of transparency which is imposed on the contracting authority consists in ensuring, for the benefit of any potential tenderer, a degree of advertising sufficient to enable the services market to be opened up to competition and the impartiality of procurement procedures to be reviewed. »

  7. FIRST KEY REQUIREMENT : THE AWARDING PROCEDURE HAS TO BE TRANSPARENT [ « A SUFFICIENT DEGREE OF ADVERTISING »] • THE DEGREE OF ADVERTISING IS SUFFICIENT IF IT ENABLES ANY POTENTIAL TENDERER TO BE INFORMED IN DUE TIME AND TO APPLY FOR THE FUTURE CONCESSION • PRACTICAL RECOMMENDATION : FOR A BIG CONTRACT, THE NOTICE SHOULD COMPLY WITH THE STANDARD FORM AND BE PUBLISHED INTO THE OJEU, AND THE TIME-LIMIT SHOULD BE 52-DAY MINIMUM

  8. SECOND KEY REQUIREMENT : THE AWARDING PROCEDURE HAS TO BE IMPARTIAL • FIRST POSSIBILITY : THE OPEN PROCEDURE AS DEFINED BY DIR. 2004/18/EC - ANY INTERESTED CANDIDATE CAN MAKE A TENDER - THE CRITERIA AND THEIR WEIGHTING MUST BE OBJECTIVE BUT ALL THE TECHNICAL REQUIREMENTS MUST BE SPECIFIED BY THE CONTRACTING AUTHORITY BEFORE LAUNCHING THE CONSULTATION, THE NUMBER OF TENDERS CAN BE VERY HIGH, NO DISCUSSION OR NEGOTIATION IS ALLOWED USUALLY, THIS PROCEDURE IS NOT SUITABLE FOR COMPLEX LONG TERM CONTRACTS

  9. SECOND KEY REQUIREMENT : THE AWARDING PROCEDURE HAS TO BE IMPARTIAL • SECOND POSSIBILITY : THE RESTRICTED PROCEDURE AS DEFINED BY DIR. 2004/18/EC, NOT BY THE UNCITRAL MODEL LAW - TWO PHASES : SELECTION OF CANDIDATES AND AWARD OF THE CONTRACT BOTH ACCORDING TO OBJECTIVE CRITERIA - BUT ALL THE TECHNICAL REQUIREMENTS MUST BE SPECIFIED BY THE CONTRACTING AUTHORITY BEFORE LAUNCHING THE CONSULTATION, NO DISCUSSION OR NEGOTIATION IS ALLOWED HOWEVER, THE NUMBER OF TENDERS CAN BE VERY HIGH, - THIS PROCEDURE IS NOT REALLY SUITABLE FOR COMPLEX LONG TERM CONTRACTS

  10. SECOND KEY REQUIREMENT : THE AWARDING PROCEDURE HAS TO BE IMPARTIAL THIRD POSSIBILITY : THE NEGOTIATED PROCEDURE (AFTER PRIOR PUBLICATION OF A NOTICE) - TWO PHASES : SELECTION OF CANDIDATES AND AWARD OF THE CONTRACT BOTH ACCORDING TO OBJECTIVE CRITERIA - THE CONTRACTING AUTHORITY IS NOT OBLIGED TO SPECIFY ALL THE TECHNICAL REQUIREMENTS BEFORE LAUNCHING THE CONSULTATION, - NEGOTIATION IS ALLOWED TO MAKE THE TENDERS MORE SUITABLE • THIS PROCEDURE IS TECHNICALLY MORE SUITABLE FOR COMPLEX LONG TERM CONTRACTS SINCE IT IS MORE FLEXIBLE BUT IT RISKS BEING NEITHER TRANSPARENT • NOR IMPARTIAL

  11. SECOND KEY REQUIREMENT : THE AWARDING PROCEDURE HAS TO BE IMPARTIAL FOURTH POSSIBILITY : THE COMPETITIVE DIALOGUE AS DEFINED BY DIR. 2004/18/EC • THE NEEDS AND REQUIREMENTS ARE DEFINED IN THE NOTICE AND/OR A DESCRIPTIVE DOCUMENT • CANDIDATES ARE SELECTED (MINIMUM 3 CANDIDATES) LIKE IN THE RESTRICTED PROCEDURE • THE CONTRACTING AUTHORITY OPENS, WITH THESE CANDIDATES, A DIALOGUE THE AIM OF WHICH IS « TO IDENTIFY AND DEFINE THE MEANS BEST SUITED TO SATISFY THEIR NEEDS » • ALL ASPECTS OF THE CONTRACT MAY BE DISCUSSED • EQUALITY OF TREATMENT : THE CONTRACTING AUTHORITY MAY NOT PROVIDE INFORMATION IN A DISCRIMINATORY MANNER WHICH MAY GIVE SOME TENDERERS AN ADVANTAGE OVER OTHERS • CONFIDENTIALITY : THE CONTRACTING AUTHORITY MAY NOT REVEAL TO THE OTHER PARTICIPANTS SOLUTIONS PROPOSED OR OTHER CONFIDENTIAL INFORMATION WITHOUT HIS/HER AGREEMENT • IF SPECIFIED, THE CONTRACTING AUTHORITY MAY PROVIDE FOR THE PROCEDURE TO TAKE PLACE IN SUCCESSIVE STAGES IN ORDER TO REDUCE THE NUMBER OF SOLUTIONS TO BE DISCUSSED

  12. SECOND KEY REQUIREMENT : THE AWARDING PROCEDURE HAS TO BE IMPARTIAL • HAVING DECLARED THAT THE DIALOGUE IS CONCLUDED, THE CONTRACTING AUTHORITY ASKS THE PARTICIPANTS TO SUBMIT THEIR FINAL TENDERS • THE CONTRACTING AUTHORITY CAN ASK THE TENDERERS CLARIFICATION OR FINE TUNING BUT NO SUBSTANTIAL CHANGE IS ALLOWED • THE TENDERS ARE ASSESSED ON THE BASIS OF THE CRITERIA LAID DOWN IN THE CONTRACT NOTICE. THE TENDER THAT IS CHOSEN IS THE MOST ECONOMICALLY ADVANTAGEOUS TENDER • AFTER A TENDER HAS BEEN CHOSEN, THE CONTRACTING AUTHORITY CAN ASK THE WINNER CLARIFICATION OR FINE TUNING BUT NO SUBSTANTIAL CHANGE IS ALLOWED • THE CONTRACTING AUTHORITY CAN SPECIFY PRICES OR PAYMENT TO THE PARTICIPANTS IN THE DIALOGUE THIS¨PROCEDURE, DESIGNED FOR COMPLEX CONTRACTS, IS COMPLEX BUT TRANSPARENT AND IMPARTIAL

  13. PROCEDURES FOR THE AWARD OF PPP CONTRACTS • NO LEGAL DEFINITION OF PPP IN EC LAW • PRACTICAL DEFINITION : ANY FORM OF COOPERATION BETWEEN PUBLIC AND PRIVATE ENTITIES INVOLVING OR NOT INVOLVING THE ESTABLISHMENT OF A MIXED CAPITAL ENTITY

  14. THE TWO TYPES OF PPP 1/ THE PPP NOT INVOLVING THE ESTABLISHMENT OF A MIXED CAPITAL ENTITY = PPP CONTRACTS STRICTLY SPEAKING THESE CONTRACTS CAN BE PROCUREMENT CONTRACTS OR CONCESSIONS WITHIN THE EC LAW EVEN IF THEY ARE DEFINED IN A DIFFERENT MANNER FROM THE PROCUREMENT CONTRACTS OR THE CONCESSIONS WITHIN THE MEANING OF THE LAW OF A COUNTRY FOR INSTANCE, THE FRENCH « CONTRATS DE PARTENARIAT » ARE NOT PROCUREMENT CONTRACTS WITHIN THE MEANING OF THE FRENCH LAW HOWEVER, THEY ARE PROCUREMENT CONTRACTS WITHIN THE MEANING OF THE EC LAW

  15. HOW TO AWARD A CONTRACTUAL PPP, WHICH DOES NOT INVOLVE THE ESTABLISHMENT OF A MIXED CAPITAL ENTITY ? • NECESSITY TO CHECK THE LEGAL NATURE OF THE CONTRACT WITHIN THE MEANING OF THE EC LAW • IF THE COUNTERPART OF THE ACTIVITY OF THE PRIVATE PARTNER IS A PRICE DEFINED BY THE CONTRACT, THIS CONTRACT IS A PROCUREMENT CONTRACT, WHICH HAS TO BE AWARDED LIKE A PROCUREMENT CONTRACT • IF THIS COUNTERPART CONSISTS SOLELY IN THE RIGHT TO EXPLOIT THE WORK OR THE SERVICE, OR THIS RIGHT TOGETHER WITH PAYMENT, THIS CONTRACT IS A CONCESSION, WHICH HAS TO BE AWARDED LIKE A CONCESSION

  16. THE TWO TYPES OF PPP 2/ THE PPP INVOLVING THE ESTABLISHMENT OF A MIXED CAPITAL ENTITY WHICH HAS TO CARRY OUT WORKS OR PROVIDE SERVICES • NECESSITY TO CHECK THE LEGAL NATURE OF THE COUNTERPART OF THE ACTIVITY OF THE MIXED CAPITAL ENTITY • IF THIS COUNTERPART IS A PRICE, CHOSING A PRIVATE PARTNER = AWARDING A PROCUREMENT CONTRACT, WHICH HAS TO BE AWARDED LIKE A PROCUREMENT CONTRACT • IF THIS COUNTERPART CONSISTS SOLELY IN THE RIGHT TO EXPLOIT THE WORK OR THE SERVICE, OR THIS RIGHT TOGETHER WITH PAYMENT, CHOSING A PRIVATE PARTNER = AWARDING A CONCESSION, WHICH HAS TO BE AWARDED LIKE A CONCESSION

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