1. Competitive Dialogue/Competitive Procedure with Negotiation
Competitive Dialogue/Competitive Procedure with Negotiation CMG - 22 May 2019
Fergal Ruane, Partner, ByrneWallace

2. Negotiations - Legal Framework
SI 284 of 2016 – European Union (Award of Public Authority Contracts) Regulations 2016
Regulation 29 – Competitive Procedure with Negotiation (“CP”)
Regulation 30 – Competitive Dialogue (“CD”)
Regulation 32 – Negotiated Procedure without prior publication

3. Grounds for using CP or CD (Reg 26)
Where:
the needs of the contracting authority cannot be met without adaption of readily available solutions;
the contract includes design or innovative solutions;
the contract cannot be awarded without prior negotiation because of specific circumstances related to the nature, the complexity or the legal and financial make-up or because of risks attaching to it;
the technical specifications cannot be established with sufficient precision; or
only irregular or unacceptable tenders are submitted.

4. Commonalities between CP and CD
Can Shortlist down to min of 3 in both procedures
Can both be conducted in successive stages (e.g. Dialogue Stage and Best And Final Offer (BAFO) Stage)
No change to minimum requirement or criteria
Must comply with General Principles of Public Procurement

5. Differences between CP and CD
Can negotiate final tender under CD Procedure
CD normally takes longer due to conduct of dialogue stage
As part of CD procedure Contracting Authority issues an Invitation to Participate in Dialogue (ITPD)
At the end of the dialogue stage the CA issues a Invitation to Submit Final Tenders to tenderers (ISFT) .

6. Extent of Negotiations - CP
Regulation 29(8)
“Unless otherwise provided for in this Regulation, a contracting authority shall negotiate with a tenderer the initial and all subsequent tenders submitted by that tenderer, except for the final tenders within the meaning of paragraph (16), to improve the content of the tenders”

7. Extent of Negotiations - CP 2
Regulation 29(10) – Ensure equal treatment of all tenderers by:
Not providing information in a discriminatory manner;
Informing remaining tenderers of any changes to technical specifications or procurement documents other than minimum requirements; and
Provide sufficient time to modify and re-submit tenders

8. Extent of Negotiations - CD
Regulation 30 (4)
(a) where dialogue has closed CA shall ask the remaining participants to submit their final tenders
(b) final tenders may be clarified, specified and optimised without changing the essential aspects of the tender of the competition and without distorting the competition or having a discriminatory effect

9. Extent of Negotiations - CD 2
Regulation 30 (5)
“(a) a contracting authority shall assess the tenders received on the basis of the award criteria laid down in the contract notice or in the descriptive document;”

10. Extent of Negotiations – CD 3
“(b) at the request of the contracting authority, negotiations with the tenderer identified as having submitted the tender presenting the best price-quality ratio in accordance with Regulation 67 may be carried out to confirm financial commitments or other terms contained in the tender by finalising the terms of the contract, where such negotiations do not—
(i) have the effect of materially modifying essential aspects of the tender or of the public procurement, including the needs and requirements specified in the contract notice or in the descriptive document, or
(ii) risk distorting competition or causing discrimination.”

11. Avoid Material Changes – Reg. 72
While Reg 72 sets out what would constitute “Material” changes to an existing contract and gives rise to a new contract which needs to be retendered, the test for material change would equally apply pre award too:
does change introduce conditions, which, had they been part of the initial award procedure, would have allowed for the admission of the tenderers other than those initially admitted or would have allowed for the acceptance of a tender other than the one initially accepted?
does change extend the scope of the contract considerably?
has the economic balance of the contract shifted in favour of the contractor in a manner not provided for in the terms of the initial contract?
27 September 2018

12. Clarifications Abnormally Low Tenders
Regulation 69 sets the out steps which must be followed by contracting authority if the price or costs in a tender appears to be abnormally low
Cannot exclude a tenderer for suspected ALT without first giving the tenderer the opportunity to explain the ALT
Other Types of Clarifications
No express obligation in Directive/Regulation on CA to clarify
Reg 56(4) gives the CA discretion to clarify
However, CA might be under an obligation to clarify depending on:
the wording of the tender documents and/or
the EU General Principles of Public Procurement

13. Practical Tips
Record justification for availing of CP or CD procedures (Required to do so pursuant to Reg 84(1)(e))
Whether using CP or CD procedure it would be prudent to reserve right in contract notice to conduct procedure in successive stages
When using CP reserve right to award contract notice on the basis of initial tenders without negotiation
In the CD procedure try to have a robust ITPD to facilitate a more meaningful and robust dialogue process, while reserving your position on key items but not minimum requirements
Try and ensure a sufficient number of participants are invited to dialogue and/or tender to ensure sufficient competitive tension, but be mindful that dialogue participants/tenderers may drop away if there are too many parties at the table as bidding costs can be significant under CP and CD

14. Questions? Fergal Ruane Partner, Projects & Infrastructure
July 31, 2019
Fergal Ruane
Partner, Projects & Infrastructure
Questions?