A Potential Hazard: The New Competitive Procedure with Negotiation November 6, 2015 at 1:40 pm

If you think that the procedure chosen by your client will not affect your win chance, think again! It is vital you understand the possible impact.

The Competitive Dialogue has been around for some time and we have seen many instances of its use (and misuse) to date.  We are now getting some practical understanding of the Competitive Procedure with Negotiation and this note outlines how this experience is giving us more insight and warns of the impact this could have on your win chance.

The Background

Firstly, both the Competitive Procedure with Negotiation and Competitive Dialogue have many similar characteristics.  The grounds for their use by a contracting authority are the same.  The contract to be let must be innovative, it must not be capable of sufficiently precise specification at the time of going to the market or it must have risks attached that cannot be priced at the outset.  Each procedure then follows a phased negotiation and dialogue route and is designed to provide competitive pressure on the contenders throughout.

The Differences

The substantive differences between the procedures lie in the fact that the Competitive Procedure with Negotiation is a hybrid procedure, unlike the Competitive Dialogue, and the level of negotiation allowed at final tender stages for the procedures.

Hybrid Procedure

The hybrid nature of the Competitive Procedure with Negotiation can be seen in that a contracting authority can elect to accept a Competitive Procedure with Negotiation bid on the basis of the initial tenders, in the same way it would had done if it had followed a restricted procedure.  It is not forced to go to a negotiation stage.  Of course, this gives the canny supplier the opportunity to provide a complete and convincing response at the initial tender stage, with a reasoned argument for the contracting authority to avoid further spend on pointless continued competition.


However, at the final tender stages, there are also differences in the permitted levels of negotiation:

– Competitive Procedure with Negotiation

– Contracting authorities can negotiate with tenderers the initial and all revised tenders submitted by them in the competition, except for the final tender.

– The minimum requirements and the award criteria cannot be the subject to any negotiation.