3.2.5 The case of the consultation stage (technical dialogue)

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Consultation (“technical dialogue”) is defined as the procedure in which the Contracting Authority seeks and accepts advice on the contents of all or part of the Tender Documents for the tender procedure which it intends to announce, provided that such advice does not have the effect of precluding competition.

The technical dialogue, where selected as necessary by the Contracting Authority, is conducted after the second step of the preparation and announcement of the tender procedure, which involves the preparation of the tender documents.

The technical dialogue is used selectively by the Contracting Authority in the case of public supply contracts, public service contracts or public works contracts with one or more of the following characteristics:

1.They involve innovative specifications or terms of execution.
2.Are particularly complex and complicated in terms of their scope, leading to uncertainty as to whether the requirements of the Contracting Authority can be established at the necessary level of detail and with the necessary clarity.
3.The Contracting Authority has limited experience in the preparation of the required tender documents, and use of the services of an outside support Consultant is not possible:
Either because of time constraints regarding the conclusion of the contract,
Or because of inability to invest the resources required in this case.
4.It is not possible to establish a relation between the market conditions and the business and functional requirements of the contract, thus raising doubts as to the response of the economic operators and the submission of appropriate tenders.

The conduct of the Technical Dialogue may be decided:

Either during the project inception stage, if the Contracting Authority considers from the outset that the characteristics of the contract justify the Technical Dialogue,
Or after the determination of the business and functional requirements of the contract and/or the detailed determination of its scope, if the Technical Dialogue is considered advisable at this stage,
Or after completion of the preparation of the tender documents by the Procurement Team established by the Contracting Authority for this purpose, provided that the Team recommends the Technical Dialogue and the Contracting Authority agrees as to its advisability.

To check the advisability of conducting a Technical Dialogue and decide on it, the Contracting Authority should always consider the advantages and disadvantages of this particular procedure, which are summarised in the table below:

 

ADVANTAGES

Ensured correctness and completeness of the Tender Documents.
Maturity of the market for the submission of attractive tenders in the tender procedure
Reduced likelihood of appeals against the contents of the Tender Documents.
Confirmation of the markets capacity to respond to the tender procedure.

DISADVANTAGES

Delays in the commencement of the tender procedure.
Possible misuse of the procedure by economic operators who may seek the modification of terms or specifications for their own ulterior purposes.

Table 3-16: Advantages and disadvantages of conducting a Technical Dialogue

 

Time of conduct and duration of the Technical Dialogue

Regardless of the specific point in time when the Contracting Authority decides to use the  Technical Dialogue, its conduct takes place after the completion of the preparation of the tender documents by the Procurement Team and their delivery to the Head of the competent Department of the Contracting Authority for approval.

The Contracting Authority must decide the duration of the Technical Dialogue on a case by case basis, based on the specific information and on the complexity of the project to be put out to tender, on the one hand, and on the possible time constraints regarding the conduct of the tender procedure, on the other.

To specify the duration of the Technical Dialogue, the Contracting Authority should take into account:

The need for the economic operators to study the tender documents, so that their participation in the procedure can be substantial, to the benefit of Contracting Authority and of the project to be put out to tender.
The need for the Procurement Team to study the remarks to be submitted in the context of the Technical Dialogue.

Conduct of the Technical Dialogue

The procedure for conducting the Technical Dialogue involves four distinct steps:

 

Figure 3-10: Steps of the Technical Dialogue

It should be noted that the step of the open meeting can be omitted, if the Contracting Authority considers it preferable not to have any direct contact with the interested economic operators.

The four individual steps of the Technical Dialogue are analysed in the following:

 

During this step, the Contracting Authority notifies to the interested economic operators its intention to hold a public Consultation (Technical Dialogue) on the tender documents, and invites them to participate.

The notification-invitation is produced in one or more of the following ways:

By publication on the Website of the Contracting Authority (if such a Website exists).
By publication in the daily Press.
By sending the invitation to Chambers or associations of undertakings or professionals active in areas related to the subject area of the tender procedure.

The contents of the notification-invitation must be clear and must include at least the following information, in a standardised form (if possible) or in the form of table:

1.Identity of the Contracting Authority.
2.Summary scope and objective(s) of the project to be put out to tender.
3.Objectives of the Technical Dialogue (may include a general reference to the more complete preparation of the tender procedure and to the timely provision of information to the interested parties, but also specific references to individual tender procedure elements which the Contracting Authority intends to finalise through the Technical Dialogue, e.g. the feasibility of the foreseen project implementation time).
4.Location for the collection, by interested parties, of the tender documents on which  the consultation is to be held.
5.Place and deadline for submission to the Contracting Authority of the written remarks or comments on the tender documents, as well as of the intention of the interested party to participate in the open meeting.
6.Time and place where the open meeting will be held.
7.Method of collection of the Technical Dialogue results by the interested parties.

Table 3-17: Contents of notice invitation to Technical Dialogue

The notification-invitation must also inform explicitly the interested parties that the submission of remarks or comments orally is not allowed and that, if they are to participate in the open meeting, they shall be allowed to present themselves their remarks or comments in detail, provided that they have previously submitted them in writing to the Contracting Authority.

It is obvious that in notifying the Technical Dialogue, the Contracting Authority must have already available the part of the tender documents on which it intends to hold a consultation. In what in particular regards publication of the Technical Dialogue on the Website of the Contracting Authority, a relevant link must be provided, through which the interested parties may access directly the relevant texts and print them.

If the Contracting Authority considers it advisable, interested parties may be requested to complete a questionnaire, which the Contracting Authority shall have already prepared and shall deliver to the interested parties together with the tender documents. This questionnaire may request the interested natural or legal persons to provide their personal data and a brief description of their professional activities, while the Contracting Authority may impose a requirement for completion of the questionnaire, if the corresponding interested party wishes to present its remarks during the open meeting.

The Technical Dialogue concerns a part of the Tender Documents and not their entirety. It is obvious that, for example, the General Conditions of Contract or the Instructions to Economic Operators (in what concerns the descriptions given in these documents of the procedure, as this is provided for by the laws, and not any specific requirements for participation) are not negotiated. By the same logic, in every tender procedure there may be terms or specifications on which the Contracting Authority does not wish nor intends to hold a consultation.

Therefore, for the purposes of the Technical Dialogue, the Contracting Authority should make available to the interested parties that part of the tender documents about which it has reservations concerning:

Either the correctness and completeness of the terms and specifications that it contains,
Or the degree to which the terms and specifications can be understood by the interested parties,
Or the degree to which the market can respond to the specific terms and specifications.

It is understood that the tender documents may be made available in their entirety, with indication of those parts, chapters or annexes which are not included in the scope of the consultation.

During this step, the Contracting Authority receives the written remarks, questions or comments and/or the completed questionnaires of the economic operators who responded to the Invitation.

The Head of the competent Department of the Contracting Authority delivers the written remarks, questions or comments to the Procurement Team, which undertakes to examine them and synthesise them into a single text. In parallel, the Head of the competent Department of the Contracting Authority assigns to one of the Procurement Team members or to another senior employee of the Department of the Contracting Authority who knows the scope of the tender to be announced, or undertakes himself, to coordinate and represent the Contracting Authority in the next steps of the Technical Dialogue procedure.

To classify the remarks, the use of tables of the form given below is recommended:

GENERAL REMARKS/ COMMENTS

1


2


3


etc.


Note: The Table entitled “General Remarks/comments” is used for noting any remarks/ comments which do not refer to specific points of the terms or specifications but represent comments (positive or negative) made on the tender documents. It is also used for noting any remarks which refer to questions of principle or indicate conflicts in various places in the texts and, in general, all remarks or comments which cannot be included in the Table entitled “Specific Remarks”.

 

SPECIFIC REMARKS/ COMMENTS

REFERENCE TEXT

REFERENCE PARAGRAPH

R E M A R K S/ COMMENTS

e.g. TERMS OF REFERENCE

e.g. 2.3.1

















For entering the relevant information in the tables, it is not necessary to indicate the economic operators who submitted comments/remarks and the specific remarks submitted by each one of them (indeed, this is recommended to be avoided).

Gathering and classifying the remarks submitted by the interested economic operators at this stage of the procedure will allow the Procurement Team and any other employees who, in the opinion of the Head of the competent Department of the Contracting Authority, should attend the open meeting to be held on the Technical Dialogue is, advisable, to better prepare for the discussion to be held in that meeting.

In addition, it will allow the Procurement Team to examine the substance of the remarks, understand them and then express its opinion about the possibility and/or need to accept them, so that the corresponding points in the tender documents to which these refer may be formulated/ modified accordingly.

The open meeting for the purposes of the Technical Dialogue will be held at the location and at the date announced by the Contracting Authority in the Invitation.

The Tables containing the classified General and Special Remarks, which the Procurement Team has prepared, must be distributed to the attending representatives of the interested economic operators.

At the beginning of the open meeting, the representative of the Contracting Authority shall present the project to be put out to tender (on which the consultation is held).

During the presentation, it is advisable to refer in detail to the scope and objectives of the project, and to its specific requirements and key parameters (e.g. budget, foreseen implementation schedule). It is also advisable to present in brief the remarks/comments submitted in writing by the economic operators, mentioning specifically any remarks/comments which are contradictory or conflicting.

The possibility of attempts to use the Technical Dialogue for ulterior purposes cannot be ruled out (e.g. a specific economic operator suggesting the correction or modification of the specifications, with the aim of ensuring that these specifications agree with products or services marketed by that operator). The specific reference to contradictory or conflicting remarks during the open meeting shall prevent the attending representatives of the interested economic operators from presenting any such remarks, even if they have already submitted them in writing.

The representative of the Contracting Authority must then invite the interested economic operators who wish to do so (and who had stated this wish by completing the relevant questionnaire, if the Contracting Authority had set this as a requirement), to present their general and specific remarks, which they must have previously submitted to the Contracting Authority within the specified time limit.

During the discussion and exchange of views which shall follow, the representatives of the Contracting Authority must make every effort possible to:

Prevent the discussion from expanding to issues other than those submitted in writing to the Contracting Authority.
Avoid committing themselves regarding the modification of the tender documents according to the remarks/ comments made, with the exception of any remarks which the Contracting Authority has already decided to accept prior to holding the open meeting.

During this step, and in order for the procedure to be completed, the Procurement Team must establish a detailed record of its conclusions and recommend to the Head of the competent Department of the Contracting Authority any required formulations/modifications of the points in the Tender Document, on the basis of the results of the Technical Dialogue.

The Contracting Authority also notifies the results of the Technical Dialogue to the interested economic operators.

Notification of the results takes place by one or more, or by all, of the following ways:

By publication on the Website of the Contracting Authority (if such a Website exists).
By sending the results to the Chambers or associations of undertakings or professionals active in areas related to the subject area of the tender procedure, to which the relevant invitation to participate in the Technical Dialogue had been dispatched.
By sending the results to each one of the economic operators who submitted remarks or comments.

The contents of the notification of the results must include the following:

The tables with the classified General and Specific remarks which the Procurement Team has prepared based on the remarks submitted in writing by the economic operators.
The general conclusions of the Contracting Authority regarding the degree to which the objectives of the Technical Dialogue have been achieved (reference should be made to the number of economic operators who responded to the invitation to participate in the Technical Dialogue, as well as in broad terms to the added value contributed by the Technical Dialogue to the procedure of preparation of the tender documents).

Notification of the specific points of the tender documents which the Contracting Authority intends to modify after the completion of the Technical Dialogue is not required (without being ruled out), given that the completion of the Technical Dialogue is followed immediately by the publication of the contract notice and of the final tender documents, which the interested parties shall collect officially from the Contracting Authority in order to submit their tenders.

After the approval of the modified-improved tender documents by the body binding the Contracting Authority pursuant to its regulation, the Contracting Authority may proceed to publish the contract notice and conduct the respective tender procedure.


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