Transcript Competitive dialogue in UK PFI

Competitive dialogue in UK PFI
PPP Forum Perspective
Andrew Briggs, Partner
27 October 2011
Scene setting
• PPP Forum concerns
– Inefficiencies in way in which CD is applied to PFI projects
– Lead to
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protracted timetables
increased bid costs
wasted resources
overall adverse impact on competitiveness of UK PFI market
• To what extent are these inefficiencies created by legal
requirements of the CD process or by those that operate
them?
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2
Availability of CD procedure
• Is CD always available for PFI projects?
– Should open/restricted procedure be used for commoditised PFI?
– Is the negotiated procedure ever available?
• CD vs. Open or restricted procedures
– CD not automatic – justification needed
– CD not a tool for 'free consultancy'
• CD vs. Negotiated procedure
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Official guidance: negotiated procedure in truly exceptional cases
When is 'prior overall pricing' not possible?
When can contract specifications not be established?
Are there any practical differences between CD and a well managed
negotiated procedure in any event?
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3
Extent of dialogue
• Is there an obligation to discuss all requirements during CD?
– Discretion vs. obligation
– Bidder initiated discussions
• Is there an obligation to formalise and diarise a series of
equal meetings with all bidders?
– Flexible approach and equal treatment
• Can the MEAT criteria and their weightings vary during the
course of CD?
– Alteration of weightings at each stage of CD
– Alteration of the criteria themselves at each stage of CD
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4
Maturity at close of dialogue
• What level of bid maturity is required at the end of the
dialogue phase?
– Are a mature project agreement and well developed heads of terms
sufficient?
– Case of complex technical solution and legal / financial arrangements
– Parent company support documentation
– Interface agreements
– Funding documents
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5
Close of dialogue to financial close
• Are changes that:
– are technical or administrative in nature
– would have applied to all bids in the same manner
– are not so material that the CA remains confident that the preferred
bidder solution remains the MEAT
permissible?
•
Meaning of "clarify, specify or fine tune", "clarify aspects",
"confirm commitments" without "distorting competition or
causing discrimination"
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Funding competitions
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How do other countries achieve this?
• Ireland
• Canada
• US
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7
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