5. The challenge for acquisition teams under the Competitive Dialogue procedure is to balance the requirements of the procurement regulations with the need to achieve contract signature while operating in a world where change can occur between the closure of the dialogue phase and contract signature.
6. It is clear that it is not appropriate to leave material issues unresolved beyond the closure of dialogue because neither the acquisition team nor the bidders have addressed the issue, or considered it necessary to do so, without good cause.
7. It is important to recognise that the dialogue phase is the phase in the procurement procedure which offers the greatest flexibility. The dialogue phase should therefore continue until the acquisition team is satisfied that it has identified and defined its requirements with sufficient precision to enable robust final tenders (which fully meet these requirements) to be submitted.
8. To achieve a satisfactory result under Competitive Dialogue requires significant preparation, planning and effort by the acquisition team, including communication with the supplier market. Acquisition teams must undertake significant "front-end" work: engaging and informing the market; developing robust project governance; planning their procurement; developing their specification; being clear of their requirements; ensuring affordability and value for money; preparing their data; checking their property interests and requirements; commissioning relevant surveys capable of being relied upon by bidders; facilitating the commissioning of joint bidder surveys; and issuing well-developed contracts at the start of the dialogue. Not only is this likely to lead to more efficient and quicker procurement, it will help achieve compliance with the requirements of the competitive dialogue process.
9. All substantial aspects of bids need to be agreed before conclusion of the Competitive Dialogue. Only limited discussion and clarification, and which does not amount to negotiation, is permitted once the dialogue stage has closed. All parties need to be fully aware of the limited room for manoeuvre following the closure of the dialogue and the implications of this before closing dialogue and issuing the Call for Final Tender.
10. The acquisition team must be confident that the remaining bidders have sufficient information/clarity to be able to submit fully developed and "final" bids at this stage of the procurement. If there is a subsequent need to go beyond "confirmation, clarification or fine-tuning" then this may require a cancellation of the procurement process and a re-procurement.
11. Under Competitive Dialogue, the acquisition team therefore needs to anticipate as far as possible the issues and factors that may impact or constrain the procurement to ensure that it can proceed in an efficient and effective manner. It is important to make robust early plans, as bidders and the acquisition team will need to make substantial arrangements for resources, people and advisers for the procurement process.
12. Where the acquisition team has not done the necessary planning work needed to ensure that the selected approach is the right one, it will not be able to change tack later when the defects in its preparation become apparent - if it cannot operate the procurement process within the parameters set for the competition (outlined in the Contract notice and other competition documents) then it may have to cancel the procurement and start again.
13. Though after final bids have been submitted it is only permissible to clarify, specify and fine tune both bids and the scheme, this does not necessarily mean that the Contract has to be complete in every detail at this stage. The requirement to include all elements in the Final Tender should be interpreted in the light of the greater need and sometimes necessity in complex projects to leave some matters of detail open. It is to be expected that some parts of the Contract will still need to be clarified or confirmed post award of Preferred Bidder status.
14. Changes can occur during the period after receipt of final tenders at Preferred Bidder stage for a number of reasons which may be within or outside the control of the acquisition team. At Preferred Bidder award discussion the final detailed design may not be completed to the extent necessary for detailed planning permission to be applied for (including meeting consultation requirements).
15. Acquisition teams should not seek though to defer necessary but difficult decisions. It is clear that it is not appropriate to leave issues unresolved beyond the closure of dialogue just because neither the acquisition team nor the bidders have addressed the issue, or considered it necessary to do so, without good cause and justification.
16. Where the main elements of an issue have been addressed in the final tender but such aspects remain to be completed to the level required for contractual close, it is valid for the detail and approvals in question to be developed and sought only once a preferred bidder has been appointed.
17. In these circumstances, where there are known or likely reasons for change to occur during the post dialogue phase, it is important that the tender rules and Contract lay down clear and non-discriminatory mechanics governing the finalisation of such issues. The acquisition team should develop transparent mechanisms to allow such changes to be handled in a pre-agreed manner. If all bidders accept the specified approach as a condition of submission of their final bids, then the acquisition team might mitigate some of the potential risk of a legal challenge on the grounds of lack of transparency.
18. However, any later specification or fine-tuning of final tenders would still have to be within the boundaries set out in the relevant bidder's final tender. The acquisition team should take all reasonable measures to ensure that the likely form of final solutions which bidders have indicated during the dialogue phase they will provide are as far as reasonably possible not likely to be subject to substantial change to the basic features of the tender.
19. It is not possible to state a set of common contract issues that can appropriately be resolved after the closure of the dialogue and the submission of final tenders covering all complex procurements and their individual circumstances. In judging whether issues are suitable to resolve after close of dialogue, acquisition teams should consider whether it is practically possible or cost effective to resolve the issue, either wholly, partly or at all, before closure of the dialogue. Although each case needs to be dealt with in the context of the specific procurement, issues or details that might best be dealt with after the submission of final tender include detailed planning permission and design completion.