Interweaving planning procedures for environmental impact assessment for high level infrastructure with public procurement procedures

AuthorM. van Valkenburg, M.C.J. Nagelkerke
DOIhttps://doi.org/10.1108/JOPP-06-03-2006-B003
Pages250-273
Publication Date01 Mar 2006
JOURNAL OF PUBLIC PROCUREMENT, VOLUME 6, ISSUE 3, 250-273 2006
INTERWEAVING PLANNING PROCEDURES FOR ENVIRONMENTAL
IMPACT ASSESSMENT FOR HIGH LEVEL INFRASTRUCTURE
WITH PUBLIC PROCUREMENT PROCEDURES
M. van Valkenburg and M.C.J. Nagelkerke*
ABSTRACT. In the traditional setting of a tender procedure on infrastructure
in the Netherlands, the procedure starts after the public decision-making
procedure has been completed. In recent years, however, the Department of
Transport and Water Management has considered advancing the start of the
tender procedure in relation to the start of the planning procedure by
interweaving both procedures. The possibilities and added values of this
market approach have been researched in this paper. Added value has been
found in the area of utilisation of knowledge, innovation and creativity of the
market, thus gaining time and obtaining a more business-like character of
the planning procedure. Solutions are proposed for impediments concerning
disclosure versus confidentiality, adapting tender conditions and award
criteria, (re)using market party ideas and procedure period.
INTRODUCTION
Traditionally, in the Netherlands a tender procedure with respect
to the construction and adaptation of the infrastructure does not
begin until the procedures to be followed by the government related
to public decision-making are completed. This public decision-making
procedure by the Dutch Department of Transport and Water
Management (Department of TWM) concerns the spatial and physical
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* M. van Valkenburg, L.L.M, and M.C.J. Nagelkerke, L.L.M, are employed by
the Netherlands government Department of Transport and Water
Management. Ms. Valkenburg’s specializations are public procurement and
public private partnerships/private finance initiative. Ms. Nagelkerke’s
interests are in public procurement, contract law and civil law. This article
was written strictly off the record.
Copyright © 2006 by PrAcademics Press
INTERWEAVING PLANNING PROCEDURES FOR ENVIRONMENTAL IMPACT ASSESSMENT 251
incorporation of the infrastructure into the environment, hereinafter
also referred to as the "planning procedure." This procedure
eventually ends up in a solution chosen and elaborated by the
Department of TWM, recorded in a decision that must be
implemented, namely “track decision. This decision sets down the
layout of the road as far as height and width are concerned.
Deviations from this track decision can only be marginal.
Implementation of the track decision is then offered for tender. The
consequence of this classic approach is, as is apparent from the
experiences of the Department of TVM, that parties participating in a
tender procedure have very little room to deviate from the solution as
specified in the track decision. The result of which may be that
creative ideas in the market that differ from the track decision stand
no chance. Optimising can then only take place on a technical and
implementation level, while the design of the road is, to a great
extent, fixed. This may result in the loss of large public advantages
and cost savings. After all, deviating from the track decision in
concurrence with the Track Act quickly signifies that the planning
procedures have to be repeated either partially or entirely. This is
time-consuming and expensive. Enabling such changes during or
after a tender procedure may - in addition to considerable delay - also
have a substantial impact on the scope of the project with respect to
what is included in the official notification. This creates a risk that the
tender procedure must be repeated because an essential change has
occurred in the tender conditions.
The policy of the Dutch Department of TWM has recently been
subject to re-orientation. The Department of TWM wants to focus
primarily on its core tasks. Tasks that are not part of the core
activities are left to the market. These developments result in the fact
that the demand from the Department of TWM in tender procedures
has been changed essentially. Projects that have been elaborated to
the ready-for-use stage and are only in need of a price quotation are
no longer offered for tender. Rather, an open functional request is
posed, leaving the elaboration to the market.
In 2001, the Department of TWM has, for the first time, made
interweaving the tender procedure with the planning procedure on
infrastructure subject of a study on PPP/PFI (Public Private
Partnerships/Private Finance Initiative) projects. Ensuing from this
study a proposal has been made for an interweaving procedure,

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