The selection of a private partner is usually of key importance to the success of a PPP. At the same time, conducting an appropriate procedure sometimes encounters considerable difficulties – especially in the AREA of preserving the principle of fair competition.
Public entities may select their partners on the basis of the Act on Concession for Works or the Public Procurement Law. In the latter case it is RECOMMENDED TO USE THE COMPETITIVE DIALOGUE PROCEDURE.
This, in turn, means that the final rules for the execution of the investment are set after – sometimes extensive – negotiations between the contracting authority and potential contractors.
A problem arises when INVITES TO THE DIALOGUE do not display an active stance, which in turn raises the question of whether taking into account comments submitted, for example, by only one of the entrepreneurs is not contrary to the principle of fair competition.
In such cases it should be remembered that the CONTRACTING AUTHORITY is obliged to create equal opportunities for each of the invited participants to take part in the dialogue. What it does not do is influence the behavior of the bidders.
Hence, their inaction – not attributable to the contracting officer – does not affect the ability to accommodate the other comments.