The bumf in question is a European green paper passing itself off as a consultation exercise on the subjects of tendering for, winning and doing PFI and PPP projects. Little green men in lederhosen with strings of onions dangling from their handlebars are buttering you up. They explain that the bidding process has to "encompass the principles" (here we go) of "equality of treatment", "proportionality" and "mutual recognition". In short, the blighters (at first glance) are going to invent a rigmorale in Brussels, which will make it more difficult for you to come up with a damn good idea of your own and win a PFI job because of it. And, it is a fact that the British are hellishly good at innovation.
The commission is frightened of being fleeced. Fraud is on their minds. And if not fraud, then a bit of sleight-of-hand. Or maybe it is no more than commercial quickwittedness that Brussels plc wants to stamp out. Brussels reaches for regulations to remedy this. They recently twigged that PPP contracts and concessions, are not actually defined at "community" level. Worse still, "community law does not lay down any special rules covering the phenomenon of PPPs". This, they say, leads to "the risk of preference being given to national tenderers whenever a contract is awarded by a public authority". In other words, if there is a PFI contract for a hospital in Biggleswade, the local health authority that chooses a local, well-liked, high-quality contractor to design it, build it and run the 35-year concession, may be guilty of being "guided by considerations other than economic ones". That is a mortal sin as far as Brussels is concerned. So the commission's economic and social committee says a legislative initiative is called for.
Having said all that, I have to add that the little green men have also seen an opportunity to bring some realism into construction PFI jobs. The plain truth is that the current Brussels legislation is so oppressive it stops innovation. Look, when thinking about constructing a one-off edifice it is ever so useful to have "dialogue" with the enterprise in the running for the contract. But that "dialogue", that relationship, which inevitably develops before the contract is signed, runs smack into general community law. It has the appearance of commercial bias. An outsider suspects fast footwork is at work. Understand? Well now, that mere appearance is already unlawful. So, the public authority is searching for bright ideas, technical help, management help with the prospective work, but it is prevented from getting it by bald open-tendering "musts". This green paper has floated the idea of something called "competitive dialogue". The idea is half good. It's up to you to persuade the little green men to make it all good. This legislation is designed to overtake the current restrictive laws; restrictive at least for PPP/PFI jobs.
The blighters in Brussels (at first glance) are going to make it more difficult for you to come up with a damn good idea and win a PFI job
The new procedure of "competitive dialogue" is said to only apply to "particularly complex projects". Persuade them to omit that caveat.
Also, persuade Brussels that when you, Mr PPP/PFI Construction Enterprise, think of a bright idea about the building or the concession task, you should "own it", so you will benefit from it ahead of your competitors. Currently, the notion is to publish your bright idea to your competitors so that everyone prices on the same basis. Brussels is trying to find a way of being transparent, but doesn't seem to be able to recognise that if one of the bidders comes up with a solution that gives it an economic advantage over its competitors, that is not fraud or cheating or fast footwork. It is part and parcel of "competitive dialogue".
Tony Bingham is a barrister and arbitrator