6.42 Before inviting Final Bids, selecting a preferred bidder and submitting a Full Business Case to the Capital Investment Group, the NHSScotland body should develop the terms of the transaction to an advanced stage with the shortlisted participants and hence with the preferred bidder. This will give the NHSScotland body the maximum opportunity to achieve a key objective: to choose the bid that represents a solution that is the most economically advantageous to it and which is derived from a robust competitive process.
6.43 The NHSScotland body will need to organise itself so that it can efficiently negotiate scheme specific contract terms. The necessary time and resources will require careful prioritising if the process is to work successfully. This process should be largely complete by the time Final Tenders are invited. The NHSScotland body will also need to make sure that its advisers and particularly its legal advisers have sufficiently resourced the project to enable two or three sets of negotiations to continue contemporaneously.
6.44 There are no rules as to how negotiations should be conducted except that they should be largely complete at the point of issue of the IFT and participants should be treated in an even handed manner both as to the time allotted and to the broad balance of the positions adopted by the NHSScotland body. The existence of a standard form contract should assist the NHSScotland body in maintaining an even-handed approach to negotiations. The NHSScotland body will have to strike a balance between the costs to both the NHSScotland body and to the private sector as a whole of running negotiations with a number of participants and the benefits that maintaining competition for longer bring.
6.45 The NHSScotland body should be aware during negotiations that it should not engage in practices such as using one bidder's negotiating position as a bargaining counter in negotiations with the other shortlisted bidder(s). Neither should the NHSScotland body divulge a bidder's negotiating position to its competitor either expressly or by implication. This would both be unfair and a breach of commercial confidence.