Recent Experiences with the CD Procedure in the UKJonathan Davey,

Partner,

Addleshaw Goddard

25 April 2008

Structure of this session

History in UK

Aims of CD

Shape of UK legislation

Early UK experiences

Current position

Some suggestions

History

PPP in UK since 1990’s Manchester Metrolink Project

Historically no CD Procedure Competitive Negotiated Procedure used “Prior overall pricing” ground Challenge to use of Negotiated Procedure

Pimlico Schools Norwich Airport

Aims of CD

Provide a flexible procedure suitable for complex PFI/PPP projects whilst minimising risk of distortion

Outcome is a compromise Considerable negotiation required to deliver complex projects Fear that negotiation aids national or other preferences

A practitioner’s view (and separate handout)

Shape of UK legislation

Subordinate legislation

Four sets of regulations replaced by just two with effect from 31 January 2006:

Public Contracts Regulations 2006 Utilities Contracts Regulations 2006

Remedies Directive

Early UK experiences

Significant number of OJEU advertisements placed referring to CD even before UK implementation

Large number of existing projects continue using Negotiated Procedure

Personal experience – 2 urban regeneration CD adverts prior to UK implementing Regulations

Current position

Almost universal replacement of Negotiated Procedure by CD

CD in name but not in substance?

Frequent pitfalls: Lazy use of NP documentation/procedures Failure to define needs and requirements (still) failure to get Evaluation Criteria and Weightings right (and see Lianakis

case) Poor control of/use of dialogue phase Uncertainty around closing dialogue Insufficient development of terms prior to ITT, leading to need for post-PB

negotiation going beyond “clarifying and confirming commitments”

Some Suggestions

Early work (planning, modelling, team structuring) pays later!

CD is a process of communication, not a set of documents

Share experiences; use resources; promote best practice

Bidder skill; challenge culture (in UK now; in CZ tomorrow?)

Be flexible; ensure your documents allow it

Maintain momentum but try to resist external deadline pressure

Any questions?

Recent Experiences with the CD Procedure in the UKJonathan Davey,

Partner,

Addleshaw Goddard

25 April 2008