Morgan Cole are currently involved in advising on two ongoing procurements for Welsh public authorities using the "competitive dialogue", the new procurement route for complex schemes which is intended to replace negotiated procedure in most cases. This is still a very new and untried area (according to the Official Journal, there have only been around 500 procurements using the competitive dialogue in the EU as a whole, and around 170 in the UK).

The competitive dialogue basically aims to keep competitive tension all through the procurement process, so instead of having a single "preferred bidder", full negotiations have to be held with at least three bidders (and final tenders invited from at least two). Once final tenders are in and a winner chosen, there can be no further negotiation, only "clarification and fine tuning".

The process is available for "particularly complex" projects where it is "objectively impossible" to specify the technical means of satisfying the authority’s needs, or the legal or financial make up of the project.

Whilst negotiated procedure has not been abolished, Office of Government Commerce guidance now states that it should only be used in the most exceptional cases and therefore public authorities (including NHS bodies) will have to consider using competitive dialogue for their larger and more complex procurements. Early planning and careful programming of the process will be essential in order to achieve efficiency and value for money, and reduce the risk of potential challenge.

Simon McCann can be contacted by telephone on 029 2038 5400 or by email simon.mccann@morgan-cole.com