3.2.1 Finalise the PPP contract

The different procurement procedures imply varying forms/intensity of discussions once the preferred bidder has been selected.  Guidance 76, 77 For example, under the EU restricted or competitive dialogue procedures, once the final tenders have been received and a preferred bidder has been selected, the final adjustments to the PPP contract should be limited to clarifications and confirmation of commitments.

Irrespective of specific EU considerations, a basic principle of good procurement is that any change to the PPP contract agreed with the preferred bidder during final negotiations must not be material to the procurement (i.e. another bidder could have been selected or could have submitted a different offer if the amended term had been proposed in the tender documents ab initio). For example, changing a fundamental aspect of the risk allocation would clearly go beyond what is permitted under good procurement practice and under EU law.

The final discussions with the preferred bidder are often referred to as "final negotiations" (even if they are not strictly negotiations under some procurement regimes). At the start of this phase, the Authority's negotiating team and the preferred bidder will need to agree on a framework for final discussions/negotiations. This framework will typically include issues such as:

•  the discussion timetable;

•  the definition of the remaining issues; and

•  the recording of agreed matters.