8. SIB believes that derogations from SoPCNI 3 should only be made in exceptional circumstances on project-specific grounds.
9. SIB appreciates that for some projects this may create extra work in implementing SoPCNI 3 at a relatively late stage in the procurement process. However, there has been consultation with the public and private sectors and the SIB and the DFP believe that it is important that the PFI community should begin to work from a single SoPCNI text as soon as possible so that the significant benefits of standardisation can be felt throughout the system. If there are existing cases where the procuring body considers that it would not be feasible to comply with a SoPCNI 3 requirement because the relevant point has already been negotiated and agreed, advice should be sought from the SIB as soon as possible.
10. If a procuring body believes that it is not possible or feasible to amend an individual contract so that it is compliant with SoPCNI 3, it will need to seek the advice of SIB. The procuring body is expected to reduce its requests for derogations to a bare minimum before presenting them to the SIB. Procuring bodies should avoid approaching with a finalised list of derogations without having first convinced themselves through a detailed assessment that
there is an exceptional need for such derogation, which may be project specific or sector specific. If the SIB is presented with extensive derogation reports it is likely to revert back to the procuring body to challenge this position. It should also be borne in mind that the more extensive the derogations requested the longer it is likely to take to reach an agreed position. Such timing concerns should be taken into account in timetables for closing deals. Whilst the SIB will make every effort to be responsive to the needs of procuring bodies and Departments the last minute provision of extensive derogations will be likely to extend the procurement process.
11. Subject to the above, PFI procuring bodies should seek derogations approval once contractual drafting is settled. In the case of a procurement using the competitive dialogue procedure, as there can be no significant changes to the PFI contract following final tender, approval for any necessary derogations should be sought in respect of each bidder prior to conclusion of the dialogue.
12. The SIB would not normally expect to engage directly in contract discussions relating to derogations with private sector parties such as lenders and equity providers. The SIB's contact would normally be through the public sector bodies responsible for the contract. This is to ensure that there remains a clear line of communication and responsibility in such discussions.