Competitive dialogue – a French perspective

François LichèreProfessor of public lawUniversity of Aix-Marseille

Introduction Competitive dialogue (CD) has been the only new award

procedure introduced with the last reform of the directives on public procurement (2004) namely the Directive 2004/18 on public sector contracts

The directive 2004/17 on utilities contracts does not encompass such a procedure as it permits the free use of negotiated procedure

CD bridges the gap between open and restricted procedures which do not allow negotiations and the negotiated procedure

France has used the CD on many occasions

1. Scope of application1.1 Free recourse to competitive dialogue

below the European thresholds Different thresholds regarding works or

services Examples of use of CD : computer services ; tax

collection services and PPPs for works The way the value is calculated can in theory

have an impact on the ability to use CD ; less impact in practice (big projects at stake)

Different ways of calculating the estimated value in different Member States

1. Scope of application

1.2 The conditions of complexity above the European thresholds

Alternative conditions : public contractors: “Are not objectively able to define the technical

means in accordance with Article 23(3)(b),(c) or (d), capable of satisfying their needs or objectives, and/or

Are not objectively able to specify the legal and/or financial make-up of a project”

1. Scope of application

Very few challenges in France regarding these conditions as opposed to numerous challenges regarding the award procedures The reason can be found in the need for flexibility that firms

support ; the existence of a previous similar award procedure (call for performance) ; the advice of the official experts for PPPs (MAPPP) that would « secure » the recourse of CD

At least one case has led the court to conclude that there was a technical complexity

No case law regarding the financial and legal make up of the contract

1. Scope of application

The flexible interpretation of the scope in theory and in practice In theory: although an exception, competitive dialogue can

be justified on several occasions CD really is an exception to open and restricted procedures French statute law: inability for the public contractor to define the

means alone and in advance / objective lack of knowledge? Examples of technical complexity and financial complexity in legal

literature

In practice: The positive attitude of the MAPPP

Statistics: CD used in almost 90 % of the PPP projects and very few negative opinions by the MAPPP

Question: lack of objectivity by the MAPPP? The possibility of setting up a complex project

2. The operation of the award procedure: main issues 2.1 The ability to exclude a candidate during the dialogue phase

The ambiguous wording of the directive: ability to reduce « solutions »

The inability to ask a candidate to submit a final offer different from his solutions The risk of cherry picking The use of award criteria

2. The operation of the award procedure: main issues2.2 The ability to adapt the award

procedure during the dialogue phase The adaptation of the award criteria

An explicit possibility set by the statute law on PPPs

A restrictive interpretation by the case law of the Conseil d’Etat-CE 24.11.2004

The adaptation of requirements: a flexible interpretation for CD-CE 24.6.2011

2. The operation of the award procedure: main issues2.3 The question of post tender

modifications The possibility to confirm commitments

Purpose: avoid costly financial proposals Uncertainty : is a partial tender possible? Is a new

offer possible? The solution: generalisation of compensations as it

is the case in France for PPPs with « significant investments by the candidates »

The possibility to clarify aspects of the tender

2. The operation of the award procedure: main issues2.3 The question of confidentiality

Avoided in theory

Still reluctance in practice

Conclusion CD has shown efficiency to adapt the

demand to the offer although time consuming The operation of CD is more transparent than

negotiated procedure, both in the regulations and in practice (internal competitive dialogue rules)

There is still a lack of certainty for certain aspects of the scope and of the procedure

The current reform could extend the scope of this procedure and use it as an example for the revision of the negotiated procedure