Two thirds of the respondents26 believe that the level of flexibility allowed at the post final offer stage is not sufficient for such complex contracts as PPP 27. The concepts of "fine-tuning" and "confirmation of commitments" set forth by the Procurement Directive can be interpreted in very different ways in different jurisdictions.
A strict interpretation may provide insufficient flexibility, particularly for complex projects, and potentially lead to poorly defined or imbalanced contracts. This is because the procedure calls for a high degree of finalization of the contracts at the final offer stage This may not always prove practical in a situation when several bidders are still in competition, and more so, if such bidders offer very different solutions. As a result, the selection is made on contracts which are not yet fully elaborated and more time may be required to perfect the contract with the selected bidder than can be anticipated under the competitive dialogue approach.
A loose interpretation, on the opposite side, may undermine the benefit of the competitive and price discipline and expose the contracting authority to an increased legal risk.
Making a decision on the extent of "fine-tuning" clearly is a difficult balancing act for the contracting authorities. Such decision may be influenced by market circumstances, competition level, project size and complexity.
Our survey shows that, in practice, the "post final offer" stage lasts between 3 to 6 months in 75% of cases28. This seems to show that most contracting authorities, while they adhere to the spirit of the competitive dialogue concept, by limiting as much as possible the amount of issues left outstanding after selection of the preferred bidder29, take a pragmatic approach to this problem.
___________________________________________________________________________
26 6 out of 9.
27 The lack of sufficient flexibility was one of the reasons why many respondents believe that competitive dialogue has not fared well in the current financial crisis.
28 It is even longer in the remaining 25% of cases.
29 Under the negotiated procedure, for example, this finalisation period can be much longer.