Competitive dialogue: an economic and legal assessment
| Published date | 31 March 2020 |
| DOI | https://doi.org/10.1108/JOPP-09-2019-0059 |
| Pages | 163-185 |
| Date | 31 March 2020 |
| Author | Giulia Buccino,Elisabetta Iossa,Biancamaria Raganelli,Mate Vincze |
| Subject Matter | Public policy & environmental management,Politics,Public adminstration & management,Government,Economics,Public finance/economics,Taxation/public revenue |
Competitive dialogue: an
economic and legal assessment
Giulia Buccino
Proxenter, Center of Research in Procurement and Supply Chain, Rome, Italy
Elisabetta Iossa
Department of Economics and Finance,
University of Rome Tor Vergata, Rome, Italy and GREEN-Bocconi, Italy
Biancamaria Raganelli
Department of Management and Law,
University of Rome Tor Vergata, Rome, Italy, and
Mate Vincze
Proxenter, Center of Research in Procurement and Supply Chain, Rome, Italy
Abstract
Purpose –The purpose of this paper is to discuss the economic and legal rationale for the use of the
competitive dialogue in complexprocurement. The authors use the data set of public contracts awarded by
European Union (EU) memberstates between 2010 and 2017 to analyse its usage patterns. In particular,the
authors identify the types of contractingauthorities that mainly use the procedure, the sectors and contract
characteristics and the role of institutionalfactors related to the country’s perceived corruption and level of
innovativeness.
Design/methodology/approach –The authors discuss economic and legal issues in the use of the
competitive dialogue. The authors use a data set of public contracts awarded by EU member states,
published on the EU’s public procurement portal Tenders Electronic Daily (TED) to analyse usage
patterns and explore the types of contracting authorities that use the procedure, the sectors and type of
tenders. The data covers a sample of 1.242.090 observations, which relates to all the contract award
notices published on TED in the period 2010-2017 for all the 28 European member states. A probit model
is used as a methodology.
Findings –The empirical analysis reveals that the use of competitive value is greater for larger value
contracts, for national rather than local authorities, for the supply of other manufactured products and
machinery; for research and developmentand business, as well as information technology services; and for
construction works. The level of perceived corruption and the gross domestic product/capita do not have
explanatory power in the use of the procedure, whilst a country’sdegree of innovativeness, as measured by
the global innovationindex, positively affects the probabilityof adoptingthe procedure. A decreasing trend in
the use of competitivedialogue over time is observed.
Research limitations/implications –In conclusion, the countries examined benefited from a long
tradition of public–privatepartnerships (PPPs) and from a transposition of the 2004 directive,able to provide
an inclusive interpretationof complexity, and therefore, stimulate theadoption of the competitive dialogue in
different sectors. Conversely,the countries, which postponed a concrete transposition and the overcoming of
the confusing concept of complexity, limited the scope for the application of competitive dialogue, relying
on the easier alternative: the negotiated procedure. Those circumstances lead to visible difficulties in
stimulatingthe adoption of the procedure even in the traditional sectors; indeed, only with the new directive’s
provisionsa slight change in the trend can be seen.
JEL classification –H57, K19
Economic
and legal
assessment
163
Received4 September 2019
Revised10 February 2020
Accepted10 February 2020
Journalof Public Procurement
Vol.20 No. 2, 2020
pp. 163-185
© Emerald Publishing Limited
1535-0118
DOI 10.1108/JOPP-09-2019-0059
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/1535-0118.htm
Practical implications –To foster the use of the competitive dialoguein countries that have so far used it
to a limited extent is importantto improve upon the definition of complexity and learn from the experienceof
the top usage countries,as identified in the analysis.
Social implications –Helping the use of the procedure may facilitate the procurement of complex
contracts such as PPPs, and thus, ease the building and management of public infrastructures for the
provisionof public services.
Originality/value –The authors are not aware of previousstudies that have used the TED data set and
studied the law in a number of European countriesso as to understand the usage patterns for the competitive
dialogue.
Keywords Competitive dialogue, European procurement policy, Innovation, Public procurement,
Public sector, European policy
Paper type Research paper
1. Introduction
Every year in Europe more than 250,000 public authorities spend around 14 per cent of
gross domestic product (GDP) on the purchase of services, works and supplies. As a
consequence, the creation of a common playing field among European Countries, including
setting and enhancing harmonisedpublic procurement rules, has been considered a priority
by European authorities.
Many steps have been taken as the Directive 71/305/European Economic Community of
26 July 1971 concerning the co-ordination of procedures for the award of public works
contracts. With the 2004/17-18/EUDirectives first, and later with the Directives 2014/23/EU,
2014/24/EU and 2014/25/EU, the thresholds triggering the application of the European
Union (EU) rules have been significantly decreased, enlarging the scope of application and
new procurement procedures have been introduced. The objective was to simplify the
procurement process,making it more flexible and to harmonise regulation for concessions in
Europe, so as to ensure that public procurement could pursue common societal goals,
including environmentalprotection, social responsibility, anti-corruption,small and medium
enterprises support, innovation, combating climate change, employment, public health and
other social and environmentalconsiderations.
To pursue these multiple objectives, the Directive 2004/18/EU introduced competitive
dialogue. This procedure was designed so as to allow more communication between the
bidders and the contracting authority, so as to give the flexibility needed to implement
complex and innovative projects, including concession contracts and public–private
partnerships (PPPs). The existing procurement procedures were considered either
inadequate for some complex contracts, as in the case of the restricted procedure, which
constrained competitive innovation and prohibited negotiations or insufficiently available,
as in the case of the flexible negotiated procedures, which were limited to very specific and
extreme cases.
However, despite its potential, the competitive dialogue has not been used to the extent
that was somehow expected. In total, 15 years after its introduction, the competitive
dialogue has held only a marginal position in the procurement context of most European
countries, with the bulk of experience coming only from a small number of them
(EPEC, 2010).
In this paper, we discuss the economic and legal issues related to the design and
implementation of the competitivedialogue, investigating the driving factors stimulating or
limiting its use in different European countries. We use the data set of public contracts
awarded by EU member states, published on the EU’s public procurement portal Tenders
Electronic Daily (TED) to analyse usage patterns and explore the types of contracting
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