Competitive dialogue
The competitive dialogue (in Switzerland only dialogue ) is a method of awarding public contracts .
Legal bases
The competitive dialogue is regulated in European public procurement law in accordance with Art. 30 Directive 2014/24 / EU. In Germany, the European requirement has been implemented in Section 101 (4) of the Act against Restraints of Competition (GWB). Further detailed regulations can be found in the relevant contracting regulations (Section 18 VgV, Section 17 SektVO, Section 3 (4) VOB / A-EU 2016). The § 6a of the Public Procurement Ordinance, which expired on April 18, 2016, and § 3 (7) of the EG VOL / A 2009 are no longer the legal basis due to the full regulations in the VgV and VOB / A. The VOF (also expired on April 18, 2016) did not regulate the competitive dialogue.
In Austria, the implementation took place in the Federal Procurement Act (BVergG). There it is defined as follows in accordance with the requirements of European law in Austria:
“In the competitive dialogue, after an unlimited number of entrepreneurs have been publicly invited to submit requests to participate, the client conducts a dialogue with selected applicants about all aspects of the contract. The aim of the dialogue is to determine one or more solutions or solutions corresponding to the needs and requirements of the client, on the basis of which the respective applicants are invited to submit an offer. "
application
The competitive dialogue is intended for particularly complex matters and contains elements of the “restricted procedure” and the “negotiated procedure”. It is used when placing particularly complex orders.
Examples of this can be:
- Public Private Partnership
- large infrastructure projects
- specific software concepts
- Advertising and marketing concepts
The prerequisites for choosing the competitive dialogue are regulated in Austria in § 34 BVergG 2006:
- The jobs must be particularly complex
- the award by way of an open or restricted procedure must not be possible
An order is particularly complex if the client is objectively not able to
- the technical specifications in accordance with Section 98 (2), with which its needs and requirements can be met, or
- indicate the legal or financial conditions of the project
Action
The competitive dialogue is a three-stage process. In a first phase, an unlimited number of companies will be publicly invited to submit requests to participate. After the selection of suitable applicants, the second stage begins - the dialogue . The aim of this dialogue is to look for solutions that eliminate the client's problem or meet his needs and requirements. After one or more solutions have been worked out, in the third stage the applicants are asked to submit an offer .
The special thing about this procedure is that the client and the applicant talk about the service or work out solutions before submitting offers, which in other procedures can lead to the applicant being excluded from the award procedure. The general provisions on applicants and bidders regulate that entrepreneurs who are involved in the preparatory work for a tender are excluded from participation in the award procedure, provided that their participation in the procedure would prevent fair and fair competition. If the entrepreneur nevertheless takes part in the award procedure, his offer must be rejected. The aim of this regulation is to ensure that entrepreneurs who take part in preparatory work do not enjoy a competitive advantage due to their information advantage over other applicants, as this could not guarantee fair and fair competition among economic participants.
Practical examples
In practice, the competitive dialogue type is increasingly used. Examples are the new construction of the Coface Arena soccer stadium in Mainz, the redesign of the Hanau city center, the redesign of the Nidderau city center, the new building of the Brandenburg state parliament and the document management system of the city of Osnabrück. According to the statistics of Tenders European Daily (TED), competitive dialogues are often used in other European countries, especially in France and Great Britain.
literature
- Thomas Mösinger: Equal treatment of the participants in the competitive dialogue . In: New journal for construction law and procurement law (NZBau) . 2009, p. 695-697 .
- Mine Elfi Reimnitz: The new competitive dialogue: An alternative to the negotiation process taking into account public-private partnership models (= studies on German and European company and economic law . Volume 14 ). Peter Lang, Frankfurt am Main / Berlin / Bern / Bruxelles, New York / Oxford / Vienna 2009, ISBN 978-3-631-59079-9 .
- Christof Schwabe: Competitive dialogue, negotiation procedure, expression of interest procedure - application requirements and procedure implementation in a functional comparison . 1st edition. NOMOS, Baden-Baden 2009.
