The new legislation on public procurements contains a new provision regarding the pre-tender phase and the possibility of organizing a “market prospection”.
This pre-tender dialogue with potential tenderers is called “Prospection du marché/marktverkenning” and is regulated in article 5 of the Royal Decree of 15 July 2011:
“Before launching an awarding procedure, the contracting authority can prospect the market to draft its contract documents and specifications provided that this prospection does not impeach or infringe competition.”
The “Report to the King” on this Royal Decree gives an indication on possibilities and legal constraints applicable to both the potential tenderers and the contracting authorities:
- The public entities can seek information regarding the development of products and techniques.
- The prospection shall take place before the tender is launched.
- The prospection should not lead to pre-negotiations with a firm (for example, on prices).
- The prospection should not infringe or influence the competition.
- The prospection should not lead to the use of technical specifications tailored for one specific firm.
- The potential tenderer giving advice will not have access to privileged information.
- Thereafter, other tenderers will have sufficient time to submit their tenders (legal deadlines are foreseen in the legislation; they should, for example, not be shortened in an unreasonable way).
For further information, see P. Thiel, Memento des marches publics et des PPP 2014, Kluwer, Brussels, 2013, pp. 417–419.