Given this, “contracting authorities” (for example local authorities, housing associations, ALMOs) should be aware that new Cabinet Office guidance suggests that competitive dialogue procedure should not be used as often as it has been in the past. Government was concerned that the procedure has too often been used as an alternative to proper market testing before starting the procurement.

Although the guidance is binding only on Central Government, other contracting authorities should bear it in mind when considering whether to use the competitive dialogue procedure.

Competitive dialogue and when it can be used

Competitive dialogue is a procedure which allows clients to discuss aspects of the contract with the contracting authority with the selected tenderers after prequalification but before asking for final tenders.  During this stage, an individual “solution” is worked out with each tenderer.  Once the dialogue has generated potential “solutions”, final tenders are invited, with each tenderer pricing their own “solution” to the contracting authority’s requirements.

Technically the competitive dialogue procedure can be used only to procure “particularly complex contracts” (ie contracts where the client cannot objectively define at the outset either the technical means of carrying out the project or its legal and/or financial make-up).

Guidance

The government proposes that competitive dialogue should not be used for projects where “market testing” is an acceptable alternative or where the procurement can be completed within four months.

The new guidance suggests that the competitive dialogue procedure should now only be used for projects such as:

  • construction or economic infrastructure projects involving design and/or the need for planning permission (ie new build);
  • projects involving complicated commercial arrangements, a public private partnership or a private finance element (ie joint ventures).

Clients proposing to use competitive dialogue should ensure they have a good reason to do so and that their contract is genuinely within the definition of “particularly complex”.

For more information

For advice on EU procurement procedures contact Andrew Millross on andrew.millross@anthonycollins.com or 0121 212 7473.

Is £400m enough?
Is £400m enough?

The government announced on 16 May that it will provide a fund of £400m to cover the costs of removal and replacement of cladding to high rise residential blocks which have failed tests.

The problems with co-owned properties and attorneys
The problems with co-owned properties and attorneys

Whilst some people are under the impression that preparing a Lasting Power of Attorney (LPA) is simply a case of completing a form and ticking a few boxes, it is about far more than this.

What's mine is (not) yours!
What's mine is (not) yours!

A big fear for some people facing divorce and the inevitable carving up of the matrimonial assets. They seek assurances that such assets will be “ring-fenced” and retained for them.

How to avoid the PET trap
How to avoid the PET trap

When an individual is thinking about making a gift to another individual, consideration needs to be given to the Potentially Exempt Transfer (PET) trap.

Fictitious divorces
Fictitious divorces

Arising from the recent Family Division announcement, people who think they are legally divorced may in fact still be married.