Jurisdiction

Was the Directive transposed into national laws?

Applicable national laws

Comments

Is the competitive dialogue procedure (CDP) used (i) in general or (ii) for PPPs only

1

Austria

Transposed

Bundesvergabegesetz 2006

CDP can be used for all types of projects, irrespective of PPP or not.

2

Belgium

Transposed. CDP is foreseen in legislation that has not entered into force yet.

Most mandatory provisions have now been implemented, albeit late. CDP being optional, this didn't seem to be a priority.

N/A

3

Bulgaria

Transposed

Law on Public Procurement, in force as of 01.10.2004.

Regulation on the Implementation of the Law on Public Procurement, adopted with a Decree of the Council of Ministers No 150 of 21.06.2006, in force as of 01.07.2006.

Regulation on the Award of Small Public Procurement, adopted with a Decree of the Council of Ministers No 249 of 17.09.2004, in force as of 1.10.2004.

Law on Concessions, in force as of 01.07.2006.

Regulation on the Implementation of the Law on Concessions, adopted with a Decree of the Council of Ministers No 161 of 29.06.2006, in force as of 01.07.2006.

The national regime regulating public procurement is slightly more restrictive than the one envisaged by the EC Procurement Directives.

However, as regards CDP, there seem to be no material differences between the rules implemented for the transposition of the Directive and the Directive itself.

CDP is rarely used. Its use in practice is not limited to PPPs only but to all particularly complex contracts.

4

Croatia

Transposed

Public Procurement Act adopted by the Parliament of the Republic Croatia on 3 October 2007, as amended on 17 October 2008.

CDP can be used for all types of particularly complex projects, irrespective of PPP or not.

5

Cyprus

Transposed

The Coordination of Procedures for the Award of Public Works Contracts, Public Supply Contracts, Public Service Contracts and for the Related Matters Law of 2006 (Law 12(l)/06).

The provisions of the Cypriot laws in respect of CDP are identical to the relevant provisions of the Directive.

CDP can be used in general under Cypriot law.

Law 12(I)/2006 does not place any restrictions for the use of CDP for PPPs only, hence non-PPPs can also be procured using this procedure.

6

Czech Republic

Transposed

Act. No. 137/2006 Coll., as amended, on public procurement.

The procedure for successive stages of competitive dialogue (as provided for in Article 29(4) of the Directive) and specification of prices or payments to the participants (as provided for in Article 29(8) of the Directive) have been enacted.

CDP can be used for all types of projects and is not restricted to PPPs.

7

Denmark

Transposed

Executive order no. 937 of 16 September 2004 (effective 1 January 2008).

The Directive has been implemented into Danish law by executive order with minor clarifications, but without any changes.

CDP can be used in general. However, in practice this procedure has mainly been used for PPPs.

8

Estonia

Transposed

Estonian Public Procurement Act, adopted by the Parliament of the Republic of Estonia on 24 January 2007) (Section 26) (Riigihangete Seadus).

The contracting authority is entitled to use CDP, provided the estimated value of the public procurement is below the international threshold.

CDP can be used for PPPs, but also in complicated ordinary procurements (IT, constructiuon) where the contracting authority is not objectively able to specify the legal or financial circumstances related to the procurement with adequate precision.

9

Finland

Transposed

Act on Public Contracts (Laki julkisista hankinnoista 30.3.2007/348) (the ACP).

Act on the Public Contracts by units operating water and energy services, transport and postal services (Laki vesi- ja energiahuollon, liikenteen ja postipalvelujen alalla toimivien yksikoeden hankinnoista 30.3.2007/349).

APC by large contains equivalent provisions to the ones in the Directive.

CDP can be used in general and is not restricted to PPPs only.

10

France

Transposed

Depends on the type of public contract:

(1)  Public procurement contracts entered into by the State, local authorities and some public entities:

Public procurement contracts Code, as amended by a Government order dated 1 August 2006.

(2)  Public procurement contracts entered into by contracting authorities other than those concerned by the public procurement contracts Code:

Ordinance dated 6 June 2005.

(3)  Partnership contracts (PPPs):

Ordinance dated 17 June 2004.

(4)  Public works concessions:

Ordinance dated 16 July 2009.

(5) PPPs for hospitals and justice, police or defence projects:

Ordinance dated 4 September 2003 (hospitals).

Law dated 6 August 2002 and Government Order dated 6 January 2004 (justice, police, defence).

For PPPs in the health sector and in justice, police and defence matters, contracting authorities are entitled to choose either the Partnership contracts (PPPs) legal framework or the specific legal frameworks for PPPs in the relevant sectors.

CDP can be used for all kinds of public procurement contracts and not for PPP projects only.

11

Germany

Transposed

Procurement Modernisation Act (Gesetz zur Mondernisierung des Vergaberechts) amending the following Acts:

(1)  Act Against Unfair Competion (Gesetz gegen Wettbe- werbsbeschränkungen).

(2)  Procurement Regulation

(Vergabeverordnung).

CDP has been implemented into German law without any significant variations when compared to the Directive.

CDP is used for all types of procurement other than in the fields of water, traffic or energy supply.

12

Greece

Transposed

Presidential Decree 60/2007 (Government Gazette A64/16-3-2007).

CDP was implemented with few slight variations in wording.

CDP can be used for all types of procurement.

13

Hungary

Transposed

Act 129 on Public Procurement of 2003.

CDP has been implemented into Hungarian law in line with the Directive but with more details of applicable procedures.

CDP can be used for all types of procurement.

14

Ireland

Transposed

The European Communities (Award of Public Authorities' Contracts) Regulations 2006, SI No. 329 of 2006 (the Public Sector Regulations).

CDP is substantially the same as set out in the Directive.

The procedure has been used on a number of PPPs to date, and has also been used on a wide range of other projects, such as IT contracts and property development agreements.

15

Italy

Fully transposed but CDP suspended by article 1, Legislative Decree 113/2007

The Directive has been implemented by Article 58 of Legislative Decree 163/2006 - Code of public works contracts, public service contracts and public supply contracts (the Code).

CDP is provided in article 58 of the Code.

According to Article 253 of the Code, the applicability of Article 58 of the Code is suspended until the entry in force of the implementing regulation of the Code. Nevertheless, CDP is allowed for project financings under Article 153 of the Code.

CDP can be used in the same cases as envisaged in the Directive. The Code also developes the concept of "complex contracts" provided by the Directive, clarifying what contract can be deemed "complex" (i.e. inter alia where "contracting authorities, due to objective causes, don't have studies regarding the identification and quantification of their needs or studies regarding the possible economical, social and environmental consequences of the planned projects").

A previous opinion of the Superior Council for Public Works (Consiglio superiore dei lavori pubblici) and - when applicable - of the Superior Council for Cultural Heritage is required for public works contracts.

If the contracting authority considers that none of the offers is appropriate, the relevant bidders will not be entitled to a refund.

CDP can potentially be used for all types of procurement contracts, provided that they are classified as "complex contracts" (although due to the lack of implementing regulation of the Code, CDP is currently used for PPPs only).

The Code also contains a list of works for which CDP can not be used. In particular, CDP can not be used for strategic infrastructures of national interest.

16

Latvia

Transposed

Public Procurement Law dated 6 April 2006, as amended (the PP Law).

Law on Public and Private Partnership dated 18 June 2009; came into force on 1 October 2009.

Latvian procedural and substantive rules on CDP are analogous to the rules set forth in the Directive. No variations in the procedure have been implemented as part of the transposition.

CDP can be used for all types of procurement.

However, in practice CDP has not been used yet, since the applicable norms have been adopted only recently.

17

Lithuania

Transposed

Law on Public Procurement, adopted by the Seimas of the Republic of Lithuania (No. X-471, 22-12-2005, Žin., 2006, No. 4-102 (12-01-2006).

Lithuanian procedural and substantive rules on CDP are analogous to the rules set forth in the Directive. Variations are minor and do not change the rules of the Directive.

CDP can be used for all types of procurement.

However, it is not used very widely in practice (neither in traditional public procurement procedures, nor in PPPs).

18

Luxembourg

Transposed

The law on public procurement dated 25 June 2009 (Loi du 25 juin 2009 sur les marches publics).

The law of 25 June 2009 introduced CDP as a new form of procurement in Luxembourg.

CDP is not limited to PPPs according to the wording of the law of 25 June 2009.

However, the procedure can only be used for particularly complex procurement projects (marchés particulièrement complexes) which will in practice imply that CDP will almost exclusively be used for PPPs.

19

Malta

Transposed

The Directive was transposed in the Public Contracts Regulations (Legal Notice 177 of 2005 as amended) (the

Public Contracts Regulations) issued under the Financial Administration and Audit Act (Chapter 174 of the Laws of Malta).

The Public Contract Regulations do not vary from the minimum requirements in the Directive as regards CDP, although provide for some variations to the procedure set forth in the Directive.

In particular, Article 47(9) of the Public Contract Regulations provides for the possibility to appoint an "ad hoc" committee with the responsibility for conducting CDP on behalf of the respective contracting authority.

The Public Contracts Regulations do not specify whether CDP may or may not be used for PPPs and do not provide any specific procedures for CDP to be used in PPPs.

In practice, CDP has been used in local PPP projects and the contracting authorities involved would opt for the setting up of an "ad hoc" committee in terms of Article 47(9) of the Public Contracts Regulations.

20

Netherlands

Transposed

Award of Public Works Decree (Besluit Aanbestedingsregels Overheidsopdrachten) under the Procurement Framework Act EEC- regulations (Raamwet EEG-voorschriften aanbestedingen).

Currently, a legislative proposal is drafted by the Ministry of Economic Affairs, regarding the new Procurement Act (Aanbestedingswet). This proposal has been submitted to the House of Representatives in July 2010. It is unclear when it will be adopted. When adopted, this act will replace the current applicable national laws regarding procurement.

The stipulations regarding CDP in articles 28 and 29 of the Besluit

Aanbestedingsregels Overheidsopdrachten are similar to article 29 of the Directive.

CDP has not only been used in large projects, but also in smaller projects. The majority or even all of the projects where CDP was used were PPP projects.

21

Poland

Transposed

Act of 7 April 2006 amending Public Procurement Law dated 29 January 2004 (consolidated text: Journal of Laws 2007, No. 223, item 1655, as amended).

The regulations transposing CDP into the Polish Procurement Law are generally less flexible than the rules in the Directive. For instance, articles 60a- 60e of the Polish Procurement Law do not allow for the multistage procedure, as provided for in article 29(4) of the Directive.

CDP applies to public contracts in general, that is contracts for pecuniary interest concluded between an awarding entity and economic operator, having as their object services, supplies or works.

22

Portugal

Transposed

Public Contracts Code (Código dos Contratos Públicos), approved by Decree-law nr. 18/2008, January 29th, as amended by Decree-law 278/2009, of October 2nd.

CDP was generally transposed into national law as it is envisaged by the Directive.

There are, however, some variations, including the following:

(i) each participant may present no more than one solution;

(ii) the dialogue continues until the contracting entity identifies one solution as capable of meeting its needs;

(iii) each participant is asked to submit its tender on the basis of the sole solution that was chosen by the contracting entity.

CDP is not widely used in Portugal either in general or for PPPs.

CDP was used by the Lisbon Municipality to create, implement and finance a network of shared-use bicycles in Lisbon, complementary to public transportation. However, there were some doubts as to whether the grounds for the use of CDP were justifiable.

23

Romania

Transposed

Primary legislation - Government Emergency Ordinance No. 34 / 2006 regarding the award of the public procurement contracts, public works concession contracts and services concession contracts.

Secondary legislation - Government Decision No. 71/2007 for approving the norms for the implementation of the provisions on the award of concession contracts of public works and services as set forth in the Government Emergency Ordinance No 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts.

Tertiary legislation - Guidelines for implementing works and services concession projects in Romania approved by the MPF/NARMPP order no. 1517/9574/2009.

CDP is substantially the same as set out in the Directive.

When it comes to variations, the GEO on Public Procurement provides that the awarding authority may award a premium to the candidates who make it to the dialogue phase, but who have not been awarded a contract.

The premium shall not exceed 2% of the estimated value of the relevant contract.

The contracting authority has the right to apply the CDP for awarding a public procurement contract if the two following conditions are cumulatively fulfilled:

(a)  the respective contract is considered to be particularly complex;

(b)  the application of the open or restricted procedure would not allow awarding of the respective public procurement contract.

The particularly complex contract is considered the public procurement contract for which the contracting authority is not objectively able:

(a)  to define technical specifications, technical means that can satisfy the needs and exigencies; and/or

(b)  to establish the legal and/or financial framework for the implementation of a project.

CDP was used for awarding the following major work concession contracts:

-A3 motorway Comarnic Brasov.

-"Universitatea" underground parking in Bucharest .

-"Netcity" (optic fiber network technologies) in Bucharest.

24

Slovakia

Transposed

Act No. 25/2006 Coll. on public procurement.

CDP is substantially the same as set out in the Directive.

CDP can be used in general, however, in practice this procedure is not applied very often.

25

Slovenia

Transposed

Public Procurement Act (Zakon o javnem narocanju), Official Gazette of the Republic of Slovenia, no. 128/2006, as amended (the Public Procurement Act).

Public-Private Partnership Act (Zakon o javno-zasebnem partnerstvu), Official Gazette of the Republic of Slovenia, no. 127/2006, as amended (the PPP Law).

The Public Procurement Act is the general public procurement statute which transposes the entire Directive.

The PPP Law regulates PPPs specifically and in detail.

CDP as envisaged in the Directive is transposed in the PPP Law with the following variations:

(i) there is no requirement in the PPP Law that a contract should be particularly complex for CDP to be used;

(ii) if there are grounds permitting the award of a contract without a public tender (i.e. protection of exclusive rights, exceptional urgency), the minimum number of candidates in CDP can be less than three;

(iii) prices or payments to the participants in the dialogue may only be provided if the public partner has decided to purchase documents which describe thoroughly the legal, economic, technical, environmental or other conditions for carrying out the procedure or represent an original solution.

CDP can be used in general.

26

Spain

Transposed

Spanish Law 30/2007, dated 30 October, on Public Sector Contracts (Law 30/2007) and Royal Decree-Law 817/2009, dated 8 May, on Public Sector Contracts, which explains Law 30/2007 (RDL 817/2009).

Regulation of CDP is almost the same as in the Directive, subject to the following variations:

(i) a particularly complex contract is defined as the one where the contracting authority is unable to objectively define the technical means best suited to satisfy its needs;

(ii) CDP is a default option for contracts of collaboration between public and private sectors, unless specific situations in which negotiated procedure will be applicable;

(iii) the number of companies participating in the dialogue can be limited to at least three;

(iv) various criteria (although not specified in the applicable laws) shall be taken into account when awarding a contract using CDP. It is no possible to award the contract on the sole basis of the most economically advantageous tender.

A special "concessionary board for the competitive dialogue" is usually formed for running CDP in each particular case.

CDP can be used for PPP projects in Spain by reference to "collaboration between public and private sectors", although the negotiated procedure can also be used under certain circumstances.

PPP in the form of a concession will not be developed under CDP.

CDP can also be applied for all conventional public procurements (i.e. with no private sector participation) where the contracting authority is not able to decide on technical design of a project (particularly complex contracts).

27

Sweden

Transposed

Lagen (2007:1091) om offentlig upphandling (the Law on Public Procurement).

CDP is substantially the same as set out in the Directive.

N/A

28

United Kingdom

Transposed

The Public Contracts Regulations 2006 (Statutory instrument (SI), number: SI 2006/5; Official Journal: Her Majesty's Stationery Office (HMSO), number: 0110738853, Entry into force: 31/01/2006; Reference: (MNE(2006)51844) (the PCR).

The Public Contracts (Scotland) Regulations 2006 (Scottish Statutory Instrument 2006 No1) came into force 31 January 2006.

CDP was implemented with few slight variations in wording.

CDP is used for all types of procurement. The joint guidance of the Office of Government Commerce and the Treasury published in June 2008 states that CDP should "replace the negotiated procedure as the main procedure for complex public procurements where open and restricted procedures are deemed unsuitable."