Legal limitations on the communication between the parties in public procurement of PPP

The European public procurement regulation has been described as a restrictive force on PPP projects, especially in countries which employ a strict interpretation of the directives. One major limitation brought forward has been the restrictions on negotiations during the procurement procedure. In the literature it has been suggested that the negotiation would improve PPP performance because it allows for a clarification of the contract and enables alignment of the parties’ goals. Two propositions are used to examine if the regulations are a hindrance to PPP performance by comparing the current doctrine and European case law on public procurement to those two propositions. The perspectives are the regulation of the different procedures available in the directives: competitive dialogue, the negotiated procedure, and the open and restricted procedures and the possibility of early involvement before the formal procedure has begun. The conclusion is that, while the directives limit the procuring authorities’ abilities to exchange information and negotiate provisions, the information which need to be transferred, and negotiations which needs to be conducted, can in most cases be carried out within the current procurement framework. Thus, the public procurement legislation does not present any substantial limitations on PPP performance.