Various contributors appreciate the structure of the Competitive Dialogue, in particular the fact that a procedure in stages has been introduced and that all aspects of the project are potentially open to discussion in the course of the first stage. One contributor expects that the introduction of the Competitive Dialogue will increase the number of PPPs set up in his country of origin.
Conversely, many contributors complain that the Competitive Dialogue does not provide the degree of flexibility required to negotiate large, complex projects. The Competitive dialogue is perceived as a particularly costly procedure for bidders. Some stakeholders see the cost as being so high as to impede fair competition, as only a small number of competitors - excluding SMEs - can afford it.
In this context, contributors are particularly concerned about the provision in the second subparagraph of Article 29(6) of Directive 2004/18/EC that tenders may - subsequent to their submission as "final" - (only) be clarified, specified and fine-tuned, without changes to their basic features. This might require bidders to finalise many details of the bid before submitting it as the final tender, thus before the respective bidder can be certain of winning the contract. Under the Competitive Dialogue procedure, losing bidders would therefore incur the full cost of employing advisers to negotiate almost fully the terms of a complicated contract to the stage at which it can be signed. Issues such as staff transfer and preparation of the financial and legal documentation would also have to be decided before submission of the final tender, which entails considerable investment for bidders. Another argument against working out the full proposal before being sure of winning the contract is - according to various contributions - that banks are reluctant to carry out a full due diligence exercise until their client has secured the contract.
Against this background, the respective contributors stress the need to grant bidders scope to modify the final tender after the contract is awarded. If the Competitive Dialogue does not allow that flexibility, it cannot - according to these stakeholders - be considered well suited to complex PPPs and this might discourage prospective bidders from participating in such procedures. One stakeholder adds that "clarifications" made after the selection of the preferred bidder need to be made transparent, in order to avoid abuse. Another warns against allowing solutions which deviate from the essential requirements of the invitation to tender.
In order to reduce the cost of the Competitive Dialogue, a number of stakeholders argue in favour of keeping the procedure as short and effective as possible. To this end, two contributors contend that public administrations need to clearly disclose their needs at the outset of the procedure, to impose reasonable deadlines for the different stages of the procedure and to limit the number of candidates for the phase after the dialogue to two.
While certain stakeholders consider that contracting authorities need to be able to define the technical specifications in a way that secures the comparability of bids, others recognise that it is difficult for contracting authorities to specify all their needs and requirements in the initial contract notice, as they will most probably become aware of other needs and requirements in the course of the dialogue. More generally, several contributors expect that contracting authorities will tend to leave the definition of the requirements of the project to private operators and thereby gradually lose the ability to administer large projects. In this context, one contributor stresses that bidders might be deterred from participating in a procurement procedure if contracting authorities give the impression of opening a procurement procedure without really knowing what they want.