Brief considerations on the bidding method called competitive dialogue
Posted: Wed Feb 19, 2025 5:32 am
Competitive dialogue is a bidding modality contemplated in Law 14.133/2021 that is characterized by holding conversations with pre-selected participants with a view to identifying the most appropriate alternative to satisfy the demand in question, for subsequent formulation of proposals in a competitive phase to be established, as provided for in item XLII of art. 6 of the standard:
“Art. 6 For the purposes of this Law, the following shall be considered:
(…)
XLII – competitive dialogue: bidding kuwait telegram data method for contracting works, services and purchases in which the Public Administration holds dialogues with bidders previously selected using objective criteria, with the aim of developing one or more alternatives capable of meeting their needs, with bidders having to present a final proposal after the dialogues are concluded;”
With the competitive dialogue modality, the Administration seeks, through interaction with companies and specialized professionals in the previously selected segment, to define the object of complex contracting (or its characteristics) for which it has not identified a complete and perfectly defined solution on the market that it considers satisfactory to meet the interest it wishes to serve.
This is, therefore, an innovative measure, since the definition of the object to be effectively contracted is made by the Administration as a result of discussions held with the bidders themselves during the bidding process. In other words, in the competitive dialogue, the Administration initiates a bidding process without having exhausted the contracting planning, which is developed throughout the discussions held with the pre-selected bidders and culminates in the motivated choice during the bidding process of the solution considered most appropriate and advantageous to the public interest.
Not every object, however, can be contracted through bidding in this modality, but only those that are complex because they depend on technological or technical innovation, do not have the possibility of precise definition in all their aspects in view of their specificities and do not have a ready-made solution on the market.
This is what is established in art. 32 of Law 14.133/2021:
“Art. 32. The competitive dialogue modality is restricted to contracts in which the Administration:
I – aim to contract an object that involves the following conditions:
a) technological or technical innovation;
b) impossibility for the body or entity to have its needs met without adapting solutions available on the market; and
c) impossibility of the technical specifications being defined with sufficient precision by the Administration;
II – check the need to define and identify the means and alternatives that can satisfy your needs, highlighting the following aspects:
a) the most appropriate technical solution;
b) the technical requirements capable of implementing the solution already defined;
c) the legal or financial structure of the contract;
The doctrine is expressed along these lines:
“Competitive dialogue is a bidding method appropriate for contracting highly complex objects, characterized by a preliminary stage in which the Administration establishes discussions on technical and economic issues with interested parties. The competition itself will be established in a second stage.
(…)
(…). Competitive dialogue is appropriate in cases of uncertainty or indeterminacy of solution, which require innovation and differentiated original concepts to satisfy the Administration’s needs.” [1]
“ Competitive dialogue applies to both complex and innovative objects. Complexity and innovation are characteristics that usually go together – but not necessarily. It is possible to think, for example, of highly complex objects that do not involve innovation.
Furthermore, competitive dialogue can certainly solve part of the challenges related to the hiring of innovation by the Administration, but it does not solve the entire problem.
Innovation contracts by the public authorities, in a very simplified way, present two main challenges : (i) the difficulty of adapting bidding and contract rules to the peculiarities of contracting an innovation, and (ii) the technological risk in contracts that involve the development of new products and services.
Competitive dialogue is capable of solving the first difficulty – the dialogue phase serves, precisely, to identify the technical solution to be contracted and to modulate the supply conditions –, but it does not resolve, by itself, the issue of technological risk and the consequences, for the contract, of not obtaining the expected result.” [2] (emphasis added)
“Art. 6 For the purposes of this Law, the following shall be considered:
(…)
XLII – competitive dialogue: bidding kuwait telegram data method for contracting works, services and purchases in which the Public Administration holds dialogues with bidders previously selected using objective criteria, with the aim of developing one or more alternatives capable of meeting their needs, with bidders having to present a final proposal after the dialogues are concluded;”
With the competitive dialogue modality, the Administration seeks, through interaction with companies and specialized professionals in the previously selected segment, to define the object of complex contracting (or its characteristics) for which it has not identified a complete and perfectly defined solution on the market that it considers satisfactory to meet the interest it wishes to serve.
This is, therefore, an innovative measure, since the definition of the object to be effectively contracted is made by the Administration as a result of discussions held with the bidders themselves during the bidding process. In other words, in the competitive dialogue, the Administration initiates a bidding process without having exhausted the contracting planning, which is developed throughout the discussions held with the pre-selected bidders and culminates in the motivated choice during the bidding process of the solution considered most appropriate and advantageous to the public interest.
Not every object, however, can be contracted through bidding in this modality, but only those that are complex because they depend on technological or technical innovation, do not have the possibility of precise definition in all their aspects in view of their specificities and do not have a ready-made solution on the market.
This is what is established in art. 32 of Law 14.133/2021:
“Art. 32. The competitive dialogue modality is restricted to contracts in which the Administration:
I – aim to contract an object that involves the following conditions:
a) technological or technical innovation;
b) impossibility for the body or entity to have its needs met without adapting solutions available on the market; and
c) impossibility of the technical specifications being defined with sufficient precision by the Administration;
II – check the need to define and identify the means and alternatives that can satisfy your needs, highlighting the following aspects:
a) the most appropriate technical solution;
b) the technical requirements capable of implementing the solution already defined;
c) the legal or financial structure of the contract;
The doctrine is expressed along these lines:
“Competitive dialogue is a bidding method appropriate for contracting highly complex objects, characterized by a preliminary stage in which the Administration establishes discussions on technical and economic issues with interested parties. The competition itself will be established in a second stage.
(…)
(…). Competitive dialogue is appropriate in cases of uncertainty or indeterminacy of solution, which require innovation and differentiated original concepts to satisfy the Administration’s needs.” [1]
“ Competitive dialogue applies to both complex and innovative objects. Complexity and innovation are characteristics that usually go together – but not necessarily. It is possible to think, for example, of highly complex objects that do not involve innovation.
Furthermore, competitive dialogue can certainly solve part of the challenges related to the hiring of innovation by the Administration, but it does not solve the entire problem.
Innovation contracts by the public authorities, in a very simplified way, present two main challenges : (i) the difficulty of adapting bidding and contract rules to the peculiarities of contracting an innovation, and (ii) the technological risk in contracts that involve the development of new products and services.
Competitive dialogue is capable of solving the first difficulty – the dialogue phase serves, precisely, to identify the technical solution to be contracted and to modulate the supply conditions –, but it does not resolve, by itself, the issue of technological risk and the consequences, for the contract, of not obtaining the expected result.” [2] (emphasis added)