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 “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”

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

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?

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

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?

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

Any questions?

Dialogue vs Negotiations: is there any difference? Jonathan Davey, Partner, Head of Commercial Group, Addleshaw Goddard 25 April 2008