EU Procurement – competitive dialogue and case-law Norman Ballantyne Yousof Khan

Outline of session Brief Context What’s new Competitive Dialogue Main features Differences to negotiated procedure Recent case-law from the ECJ “In house” procurement Exempt, sub-threshold contracts and part B Cover other topics in New Year – stand still, frameworks, environmental & social considerations, timescales & electronic means

Context – legal framework Major Rationalisation : New EC directives (effective end January 06) Public Sector Directive (2004/18/EC) Utilities Directive (2004/17/EC) New UK regulations (consultation, in force end January 06) Public Contracts Regulations 2006 Utilities Contracts Regulations 2006 Treaty law and host of ECJ decisions Directives on remedies being updated

Context - Key changes Major changes in general law Online buyer profile (Selling to.. guide; procurement plan) Threshold values Time limits Specifications Selection and award Competitive dialogue procedure Electronic procurement Central purchasing bodies Framework agreements Sustainability (environmental and social considerations)

Competitive Dialogue

Comp Dialogue – Grounds for Use Authority considers restricted or open can’t be used and the contract is particularly complex Particularly complex means Authority is not objectively able to : define the technical means… capable of satisfying its needs or objectives, or specify either the legal or financial make-up of a project or both. Negotiated grounds – numerous but generally – overall pricing and inability to draw up specification.

Comp Dialogue - procedure OJEU notice – new format Award criteria & importance / weightings in notice or descriptive document Selection of bidders (minimum of 3) Dialogue with bidders to identify and define best means to satisfy needs Commercial confidentiality, equal treatment etc Dialogue may take place in stages (reference in OJEU notice) reducing number of bidders Remaining number of bidders must be sufficient for genuine competition

Comp Dialogue – procedure (cont) Final tenders (BAFOs) invited from remaining bidders on basis of identified solution Clarification, fine tuning of tenders without distorting competition Evaluation of tenders against award criteria Identification of most economically advantageous offer Notification of preferred bidder* Further clarification and confirmation of commitments without distorting competition Mandatory standstill period* Award of contract * Alcatel amendments

Negotiated and Competitive Dialogue (old) Negotiated Difficult to satisfy grounds for use e.g. overall pricing specify award criteria by ITN Time limits fixed e.g. 37 days Competitive More easily relied upon grounds for use, but early days. Specify award criteria usually in OJEU / DD Time – same but must be reasonable in all circs + electronic to shorten

Negotiated and Competitive Dialogue (old) Negotiated Ability to negotiate Negotiation subject to equal treatment etc Successive stages – partly a creation Choice of MEAT or lowest price Competitive Ability to negotiate and refine up to call for tenders Negotiation subject to equal treatment etc Successive stages – overt Must use MEAT

Negotiated and Competitive Dialogue Negotiated Possible to not have a competition e.g. extreme urgency, repeat works etc No provision for expenses but was nothing to stop you Future EU enforcement A familiar procedure – why change Competitive Open tender required Expenses can be specified Less enforcement risk ? Fits better with current UK practice

Competitive Dialogue Conclusions - early thoughts CD not exactly the same but not a revolution either Competitive - overall appears to be very flexible, bar EU cases Competitive – better fit with what has actually been happening in UK Competitive – untried / untested – will take a little while to bed down and likely to be issues of detail which arise Negotiated reserved for exceptional cases ?