2324 October 2017 Vienna Experts for Chapter III October 2017 Mikel Tejada Ibanez Petra Ferk Ricardo Seidl Fonseca Assiba Djemaoun Kristen Stewart Caroline Nicholas UNCITRAL Neli Garbuzanova ID: 652605
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UNCITRALThird International Colloquium on Public-Private Partnerships (PPPs)23-24 October 2017, Vienna
Experts for Chapter III, October 2017:
Mikel Tejada Ibanez
Petra Ferk
Ricardo Seidl Fonseca
Assiba Djemaoun
Kristen Stewart
Caroline Nicholas (UNCITRAL)
Neli GarbuzanovaSlide2
CHAPTER III SELECTION OF THE CONCESSIONNAIRE OVERVIEW
23 Model Legislative Provisions
(Section II MP
5 -27)26 Legislative Recommendations (LR 14 – 39)40 pages in the Legislative Guide Slide3
Align with Model Law on
procurement
and
clarify relation with procurement principles and law (address “grey” areas)Strengthen transparency, general principles of selection, governance, confidentiality (degree/stage) and conflicts of interest
Update terminology and clarify relationship with other Chapters (definition, disputes, contract
)Recommend competitive procedures as norm and clarify exemptions Consider two-stage procedures as beneficial if appropriately set.
CHAPTER III SELECTION OF THE CONCESSIONNAIRE
GENERAL RECOMMENDATIONSSlide4
Emphasis on transparency and due diligence
Include
option for online tendering and electronic means of communication
Consider difference between pre-qualification, admissibility, eliminatory criteriaExpand on consortia bidding (inc. modifying consortia) and anti-monopoly controlDistinguish the requirements of PPP contracting party and of lendersClarify reference to domestic preferences (pros and cons)
CHAPTER III SELECTION OF THE CONCESSIONNAIRE
PROCEDURES - ISlide5
Redraft section on evaluation criteria and systems for evaluating two-stage bids; discuss shortlisting by default
Clarify required documentation and
price charged for pre-selection documents
Review approaches to reduce bureaucracy (self-declare) and bids preparation timeReview approach to negotiation with bidders during process – when and howAmend part on final negotiations and award (fine-tuning and extent of modifications)Consider implications on contract formation, information governance, data protection
CHAPTER III SELECTION OF THE CONCESSIONNAIRE
PROCEDURES - IISlide6
UNSOLICITED PROPOSALS Debate inclusion or exclusion of unsolicited proposals; reconsider giving advantages
Subject unsolicited proposals to
rules
as competitive process; add public interestConsider relation between initiation of unsolicited proposal and competitive processEXEMPTIONSClarify, verify and narrow exemptions (urgency not due to lack of planning; for short time and requirement to launch process in due time)Expand on rationale for award with direct negotiation - different treatment of low/high value projects; lighter process rather than no process; align with procurement
CHAPTER III SELECTION OF THE CONCESSIONNAIRE Slide7
NOTICESConsider a dedicated website for publication of
notices/opportunities
Expand
on notice (notification of decision to all); consider notice on modificationsUpdate award notice to include grounds for selection and rejectionAdd information to be included in notices; timescales; sanctions for not publishingREPORTING
Strengthen reporting during and at the end of the process
Consider sharing minutes from meetings REVIEW Ensure consistency of review with the general public procurement procedures Consider a standstill period between the award and contract conclusion.
CHAPTER III SELECTION OF THE CONCESSIONNAIRE Slide8
Update UNCITRAL documents (redraft, clarify, combine, reduce)
Focus on transparency, due diligence, procedural efficiency
Align with procurement principles and law if possible
Consider competitive processes and recommend two-stage
Be clear on exemptions and unsolicited proposals.
CHAPTER III SELECTION OF THE CONCESSIONNAIRE CONCLUSIONSSlide9
Issues for other Chapters Update feasibility and other studies; subject unsolicited proposals to project screening.
Address accounting issues influencing project structures (IPSAS, IFRIC)
Consider effects of participation of international financial institution (if this affects bankability)
Explore effects of loan agreements on obligation to provide finance information (if this affects bankability). Discuss user fees and availability payment based PPPs and the relationships with the preparation and selection stage Explore approaches to preparation of selection procedure (agencies, one-stop shop)Address qualifications of evaluation panel members and use of experts.