The highly anticipated measures establishing the competitive dialogue procedure for public procurement were published in the Belgian Official Journal on 23 September 2011(Royal decree of 12 September). As of 28 September 2011, this implementing decree allows awarding authorities subject to the rules of traditional sectors to apply this procedure for certain specific procurements.
The competitive dialogue procedure is at the forefront of PPP (public-private partnerships) projects. The law of 15 June 2006, which entered into force in part, restricts the use of competitive dialogue to “particularly complex procurements”. Although this type of procurement (which remains an optional method) was already foreseen by European Directive 2004/18/CE, its application has only just been made effective in Belgium.
This regulation is in fact, once again, temporary since the complete set of new procurement rules still needs to enter into force.
The competitive dialogue process
As with the negotiation procedure, competitive dialogue is conducted in two stages.
First and foremost, the contracting authority must publish details of the project including the selection criteria and provide a descriptive document which in turn will only be made available to the selected procuring parties.
The contracting authority must specify its needs and requirements as well as its selection criteria in both announcement and descriptive document, the fundamentals of which are established for the entire procedure, unless the foreseen modifications would not affect competition or carry discriminatory elements.
A separate dialogue is conducted with each selected candidate. During the discussions, the contracting authority must ensure equal or unbiased treatment and that no confidential information is disclosed to other participants. If stated in the announcement or the descriptive document, the procedure’s length can be determined so as to limit the number of solutions envisaged on the basis of the tender criteria. In the closing phase, the reduced number should guarantee effective collaboration while keeping enough workable solutions available.
The implementing decree’s guidelines
* Competitive dialogue can be applied to procurements with values under or exceeding the European threshold;
* Certain general definitions, including that of contracting authority, are applicable within the dialogue procedure framework;
* The current tender rules relating to information, intention, equal treatment, confidentiality, etc. mandated by the law of 24 December 1993, are applicable to the new procedure;
* The implementing decree introduces a deviation from the provisions of the Royal decree of 26 September 1996 establishing the general enforcement rules applicable to public procurement procedures and public works contracts;
Some reservations
* These are temporary measures which allow for a gradual entry into force of the new regulation while existing rules are adapted to meet specific competitive dialogue requirements. Whilst the possibility of using this procedure for public-private partnerships is valued, a definite regulation would be more sought-after.
* The foreseen possibility to deviate from the implementing regulations goes beyond the general terms and conditions since the Royal decree is referred to in its entirety. This interpretation should prevail since the Royal decree contains provisions which can often be considered as obstacles to complex and complicated projects such as public-private partnerships.
* Since several solutions can be kept for consideration until the end of the procedure, the contracting authority must carefully calibrate the tendering criteria (and the weighting thereof) from the start, while evaluating their compatibility with the different solutions.
