4.2.1 Finalise PPP contract

As noted in the discussion of Step 3.2.4 (Select procurement method), different procurement procedures allow for different types and intensities of discussion or negotiation after selection of the preferred bidder and before signing the PPP contract<1)(2>. 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 should be limited to clarification and confirmation of commitments.

Irrespective of specific EU considerations, a basic principle of good procurement is that any changes to the PPP contract agreed with the preferred bidder in final negotiations must not be material to the procurement, in the sense that it must be clear that if these changes had been included in the draft contract and tender documents that was provided to bidders before they submitted their bids, this could not have resulted in another bidder being selected as preferred bidder. For example:

□ Changing a fundamental aspect of the risk allocation or the committed finance would clearly go beyond what is permitted in good procurement practice and by EU law.

The final discussions with the preferred bidder are often referred to loosely as "final negotiations" even if they are not strictly negotiations under the applicable procurement regime. The public contracting authority's negotiating team and the preferred bidder will work together to agree on a framework for final discussions/negotiations. This framework will typically include issues such as:

□ timetable;

□ definition of remaining issues; and

□ the recording of agreed matters.