4.4.1  Issues for Consideration

  Ensure that the negotiations do not affect material contractual conditions in the Partnership Contract or the terms stated in the Bidding Documents (such as EOI, RfP, etc.), which must be treated as being non-negotiable conditions, unless such amendments are expressly approved by the Supreme Fiscal Committee;

  The Preferred Bidder must be invited in writing to attend negotiations, and careful records must be kept of all subsequent correspondence and meetings, including pre-determined agendas, minutes, any evolving formal documentation, and action items;

  The Government Entity may reserve the right to start negotiations with other Bidders if the Preferred Bidder deviates from its written proposal or the proposed Risk Allocation;

  The Government Entity should be empowered to make decisions during the course of negotiation meetings, and can draft in new members as required, should their presence be deemed relevant.

  The negotiation team is advised to focus initially on common ground, enforcing a climate of mutual respect by resolving minor issues before proceeding to potentially pricklier matters;

  The negotiation team and the Preferred Bidder should arrive, by the end of the negotiation period, at a consensus on minimising conditions precedent, a definitive Timeline for signing the Partnership Contract, and a detailed system of contract and Performance Monitoring, which is discussed in the next section of this document;

  If the negotiation process is deemed successful, the Partnership Contract and all relevant ancillary agreements will be finalised by the Government Entity, with the aid of the Department of Finance. The Department of Finance will then recommend it for approval to the Supreme Fiscal Committee, following the approval of which, the Partnership Committee will award the Contract to the Preferred Bidder.

  If the negotiation process break down with the Preferred Bidder, and the Government Entity has reached a conclusion that the differences are irreconcilable, meetings with the Preferred Bidder should cease. Subsequently, the Government Entity should then communicate, in writing, to both the Preferred Bidder and the Department of Finance, expressing the reasons for the breakdown in negotiations, the chief unresolved issues, and the differences in stated positions. The Department of Finance, in consultation with the Supreme Fiscal Committee, then will have the prerogative to decide upon the course of the process: whether the project should be re-Tendered, whether the highest-ranked Bidder should be given another chance, or whether the Government Entity can proceed with negotiations with the second Bidder on the list, whose identity must then be approved; and,

  Debriefs must be offered to unsuccessful Tenderers. Government obligations for disclosure of signed agreements must also be observed.