Question 3 of the PPP Green Paper
Question In the case of such contracts [meant are the purely contractual PPPs mentioned in Question 2], do you consider that there are other points, apart from those concerning the selection of the tendering procedure, which may pose a problem in terms of Community law on public contracts? If so, what are these? Please elaborate. |
Main views of stakeholders • The main points considered to pose problems in terms of Community law on public contracts include the difficulty of distinguishing between the various types of public contracts and concessions and the related uncertainty as to the appropriate public procurement procedure. |
Various stakeholders point to the difficulty of distinguishing clearly between the various types of public contracts and concessions under EC public procurement law, and the related uncertainty as to the choice of the appropriate public procurement procedure, as key problems of current PPP practice.
Some contributions raise the problem of accuracy: inaccurate bids might unfairly favour certain bidders. Two situations are cited. One is where participants in PPP procurement procedures calculate their bids improperly. In many cases this wins them the contract, but subsequently requires a renegotiation of the terms. Stakeholders raising this problem argue that "creditworthiness" should be an important selection criterion, to ensure that private partners are able to stick to the price they initially offered. The other situation is where (over-) optimistic assumptions are made about certain factual developments, so that the price initially indicated by the respective operator is lower than that of his competitors. Again, if such assumptions turn out to be incorrect in the course of the performance of the contract, it must be renegotiated - and the public authority and competitors have lost out. One stakeholder cites estimates of the frequency of traffic in a given area affecting the profitability of a motorway as an example. To avoid such problems, it is proposed that contracting authorities provide reference estimates for factual developments relevant to the PPP.
Another point which two contributors raise is the de facto exclusion of SMEs from the bidding process for PPPs. The more contracting authorities combine individual small or medium-sized projects into single large projects, the more difficult it is for SMEs to win such contracts or concessions. The Competitive Dialogue,6 with its financial ramifications for bidders, is specifically mentioned as being disadvantageous to SMEs in this respect.
An issue raised by a substantial number of stakeholders in the context of the procurement procedure for PPPs is the change of bidding groups (i.e. consortia established for the purpose of PPP award procedures, often in the form of so-called Special Purpose Vehicles - SPVs) in the course of the procurement procedure. These stakeholders favour flexibility in this area and ask for clarification of the law at EC level.
One stakeholder refers to legal uncertainties regarding the participation of consultancies in public procurement procedures, in the event that they assisted the public side in preparing such procedures. Another stakeholder complains that contracting authorities regularly ask just one consultancy for advice on preparing procurement procedures. It is argued that this situation leads to a degree of standardisation of invitations to tender which is considered detrimental to innovation and competition. In the view of this stakeholder, assisting public authorities in preparing invitations to tender should in any case be a publicly procured service as well.
Other contributors are of the opinion that contracting authorities should embark on a real dialogue with bidders, which includes providing proper answers to questions put by bidders in the course of the procedure. One contributor argues that when contracting authorities decide to withdraw an invitation to tender they need to give good, clear reasons for this decision.
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