Transcript Folie 1 - Procurement Lawyer's

Professor Dr. Martin Burgi
Research Institute for Public Procurement Law
www.rub.de/burgi
Law Faculty
Competitive Dialogue and the
Procurement of major contracts
- A half day conference The Competitive Dialogue
in Germany
London, 27 October 2011
The Procurement Lawyer`s Association (PLA)
Agenda
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
Introduction
The Competitive dialogue in Practice
The Regulatory Framework
Scope
Conditions for the Applicability
Examples of Application
Correlation with the other Procedures
Procedure and Operation
Key Issues
Key Issues in Detail
Conclusion
Approaches to the Commission`s Green Paper
2
I. Introduction
• Prior to 2004 in Germany: negotiated procedure
• Introduction with the legislative package offering means
of discussion
• Germany:
 Integration as part of the Act to Accelerate the
Realisation of Public Private Partnership of 1.9.2005
designed as a flexible procedure for the realisation of
PPP
3
II. The Competitive Dialogue in Practice
• Germany as a regular user of the competitive
dialogue (in contrast to other Member States)
• But still: relatively rare use in practice and poor case
law
Of all contract notices published in the OJ (2009-2011):
59,396
11,440
2,227
Competitive Negotiated
procedure
dialogue
Open
procedure
Restricted
procedure
4
III. Regulatory Framework
•
•
•
Art. 29 and recital 31 of Directive 2004/18/EC
§§ 101 para. IV Act against Restraints on Competition
and §§ 3 para. VII VOL/A-EC, 3a para. IV VOB/A, largely
copying the wording of the Directive`s articles
Guidance provided (marginally) by legislation and
jurisdiction, but strategic assistance is given by the
explanatory note of the European Commission (2005),
legal experts and e.g. a PPP Task Force installed in
North-Rhine-Westphalia
§
5
IV. Scope
•
Established only for contracts above the thresholds
•
Seeking for the most economically advantageous tender,
not the tender with the best price
•
Applicability for public works concessions, not available
for public service concessions
Not established for contracts below the thresholds
Not established for contracts in the Utilities sector
•
•
6
V. Conditions for the Applicability
•
„Particularly complex contract“
 Technical complexity or/and
 Legal or financial complexity
 The purchasing body is either objectively unable to
define the technical means capable of satisfying the
purchaser`s needs and objectives or incapable of
specifying the legal and financial conditions of a project
 Decision on a by-case basis
7
VI. Examples of Application
1. Public Private Partnerships (PPP`s)
•
•
•
•
Generally suitable procedure for PPP contracts
Reason: the rights, obligations, costs, risks of the partners and
the services cannot be sufficiently specified beforehand
Co-operation in developing a suitable and needs-oriented
solution
From the beginning linked with PPP within the legislative
context
2. Other Examples (relatively rare)
•
•
Complex urban development projects
Complex construction projects (reconstruction of the State of
Brandenburg Parliament; soccer stadium in Mainz)
8
VII. Correlation with other Procedures
1. The Hierarchy of the procedures
•
Starting point: Competitive Dialogue as a procedure sui
generis
Art. 28 Directive
2004/18/EC
§ 101 para 7 GWB, §§ 3 para 1
VOL/A-EC, 3a para 2 VOB/A
Open procedure
Open and restricted
procedure
Restricted Procedure
Negotiated Procedure
and Competitive Dialogue
Negotiated Procedure and
Competitive Dialogue
9
2. The correlation with the negotiated procedure
• Problem: The scope of the competitive dialogue and the
negotiated procedure typically overlap
• The competitive dialogue does not enjoy priority over
the negotiated procedure
• Negotiated procedure is - paradoxically - more
flexible
 Negotiated procedure longer established in Germany
 More frequent use of the negotiated procedure
10
3. The main differences
Competitive Dialogue
• Particularly useful in order to
find suitable solutions
• Specification impossible:
descriptive document
• Comprehensive discussions with
the tenderer
• No further discussions after the
submission of bids
Negotiated Procedure
• Particularly useful to discuss
solutions that are already
available
• Specification of the contract, mostly
in terms of functional requirements
• Comprehensive discussions with the
tenderer
• Discussions after the submission of
first solutions/bids
• But: No further discussions after the
„final call“
11
VIII. Procedure and Operation
IV. Award Stage
III. Dialogue
 Core of the
procedure
II. Selection
I. Publication
 Contract notice
published in the OJ
 Additional publication in
daily newspapers,
expert or official
journals, internet portals
 Roughly draft the
procedure, time limits,
selection structure
 Open the dialogue with
the candidates selected
 Free to limit the
number of candidates
to be invited to conduct
a dialogue as long as
genuine competition is
ensured
 „All aspects“ may
be discussed
 No solutions to be
submitted before the
dialogues
 Official end of the
procedure
 Call for final
offers containing „all
elements“ required for
the performance of the
contract
 No modified or
adjusted specifications
 Successive reduction
due to reasons of
procedural efficiency
 ensure equality
of treatment and
confidentiality
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IX. Key Issues
Confidentiality
Selection and
Reduction of
candidates
Time
limits
Competitive
Dialogue
Procedure
Degree of
completeness
of tenders and
changes
Prices
negotiable?
Dialogue with
only the best
bidder?
13
X. Key Issues in detail
1.
•
•
•
•
•
Confidentiality
Inventory solutions or “confidential” information shall not be
revealed to other participants without the consent of the
bidder (Art. 29 para. 3)
Not be revealed to third parties (§§ 3 para. 7 lit. b) VOL/AEC, 3a para. 4 No. 3 VOB/A) either

Dialogues taking place “behind closed doors”

Idea of including a “Mediator”
Can the contracting authority use the agreement of the
bidder as an “entrance ticket”?
Problem: which information is “confidential”?
Appropriate compensation for agreement to use confidential
ideas (Art. 29 para. 8; § 3 para. 7 lit. f) VOL/A-EC; § 3a para.
7 VOB/A)
14
2.
Selection and phased elimination
•
Contracting authority enters into the dialogue with the
selected candidates
 Selection criteria not fully identical with suitability criteria
 Reduction of the candidates for reasons of procedural
efficiency
 Mostly reduction to 3-5 tenderers
•
Phased elimination of the selected during the discussions
(Art. 29 para. 4) possible under the condition that genuine
competition takes place
15
3.
•
•

Are the prices negotiable?
On the one hand: the competitive dialogue is a procedure
designed to develop solutions; if prices were fully negotiable
the complete offers would be discussed
On the other hand: Prices need to be negotiable as “all
aspects of the contract” can be discussed (Art. 29 para. 3)
and bidders may be asked to hand in final offers on the basis
of the solutions presented and specified during the dialogue
(Art. 29 para. 6)
At least: all essential aspects regarding the calculation need
to be negotiable
16
4.
•
•


Dialogue with the best bidder?
Art. 29 para. 4: Contracting authorities may provide for the
procedure to take place in successive stages in order to
reduce the number of solutions to be discussed
Art. 44 para. 4 S. 2: In the final stage, the number arrived at
shall make for genuine competition insofar as there are
enough solutions or suitable candidates
No dialogue with only the best bidder unless there is only
one solution in the competition
“Parallel strategy” enjoying priority over the “linear strategy”
17
5.
•
•
•
•
Degree of completeness and changes
Comprehensive discussions with possibility for changes before
the submission of final tenders
Require „all elements necessary for the performance of the
contract“ (Art. 29 para. 6 S. 2)
 The final tenders need to be complete
Art. 29 paras. 6, 7: tenders should not be modified after their
submission
Only clarifications, specifications and additional information
that are not likely to distort competition or have discriminatory
effect
 No discussions allowed after the submission of final
tenders
18
6.
•
Time limits
Art. 29 para. 5, 6: The contracting authority continues the
dialogue until it can identify the solution or solutions, which are
capable of meeting its needs and aks the bidders to submit
their final tenders on the basis of the dialogues.
 No need to publicize adjusted specifications after the
dialogue phase has been declared concluded
 No need to balance out or to outweigh differences
between the tenders or the differences regarding the
capabilities and abilities of the tenders to submit
suitable bids on time
 Discretion of the purchasing body strengthened
19
XI. Conclusion
The Competitive Dialogue in Germany
• Less flexible than
originally designed
• Until now:
Comparatively rare
use of the procedure
while frequent use
of the well-established
negotiated procedure
• In future:
more clarity and
legal certainty will
probably lead to its
establishment and to
more innovation
through public
procurement
20
XII. Approaches to the Commission`s Green Paper
1.
The Commission`s Green Paper asks:
Do you think that the procedures and tools provided by the Directive to address
specific needs and to facilitate private participation in public investment through
public-private partnerships (e.g. dynamic purchasing system, competitive dialogue,
electronic auctions, design contests) should be maintained in their current form,
modified (if so, how) or abolished?
2.
Synthesis of replies concludes:
that the Green Paper is generally welcomed and that stakeholders put a particularly
strong emphasis on the need to simplify procedures and make them more flexible. A
very strong majority - with the exception of citizens and some SME representatives supports the idea of allowing a greater use of the negotiated procedure.
3.
Report of the German Bar Association suggests:
to establish a second-stage procedure for the open and restricted procedure, in which
the contracting authority would first call for indicative tenders and after discussions for
definitive tenders. The Association further suggests to adopt Art. 29 para. 3 subparas.
2, 3 of Directive 2004/18/EC on the condition that genuine competition is ensured 21