Directive 2014/24/EU on public procurement (the “Directive”) allows contracting authorities to engage in pre-tender market consultations in order to: (i) identify potential bidders and solutions; (ii) build awareness and capacity in the market about the requirements of the procurement; and (c) structure and design the procurement and its contract.
Pre-tender market consultations may involve advice from independent experts or authorities or from market participants. The advice received may then be used to plan and conduct the procurement procedure. It is the contracting authority’s duty to ensure that the consultations do not distort competition, violate the principles of non-discrimination and transparency or otherwise bestow an undue advantage on a candidate that has advised the contracting authority.
Although pre-tender consultations have potential to improve the procurement process (by allowing the contracting authority to understand market players, develop appropriate specifications, choose the best procedure for the procurement, etc.), they may also foster uncompetitive behaviour, such as allowing bidders to unduly influence the specifications or increasing the risk of supplier collusion.
Bidders that participate in pre-tender consultations may be excluded from the procurement if there is no way to ensure compliance with the principle of equal treatment. However, bidders will be given the opportunity to demonstrate that their involvement in the pre-tender consultations did not offer them a competitive edge that distorts competition.
Find out more below about the implementation status of Articles 40 and 41 of the Directive in Bulgaria, Czech Republic, Hungary, Poland, Romania and the UK.
Romania implemented the Directive through Law no. 98/2016 on public procurement. Articles 40 and 41 of the Directive have been transposed almost identically into Romanian law. Secondary legislation implementing Law no. 98/2016 appears to limit the contracting authority’s ability to use pre-tender consultations only where the contracting authority seeks to procure products/services/works with a high level of technical, financial or contractual complexity, or in fields where technological progress advances quickly. Pre-tender consultations may address: potential technical, financial or contractual solutions; the contracting strategy, including division into lots or requesting alternative bids, etc. The request for pre-tender consultation (as well as the results of the pre-tender consultation) must be published in the Electronic Procurement System and are accessible to all interested parties.
Hungary implemented the Directive by Act CXLIII of 2015 on public procurement. In Hungary, contracting authorities may freely conduct pre-tender market consultations, however, they must respect the principles of fair competition and equal treatment. In accordance with the Directive, the Act prescribes that a market player participating in pre-tender consultations can only be excluded from the procurement if the fairness of competition and equal treatment cannot be ensured by any other means. In such cases, the market player must be given opportunity to prove that its participation does not infringe these principles.
The implementation of Articles 40 and 41 of the Directive in the Czech Republic gives contracting authorities relatively broad discretion on when and how to resort to pre-tender consultations. Section 33 of the Act no. 134/2016 Coll., on public procurement, provides that authorities may conduct consultations with experts (“independent” or not) or economic operators in order to prepare tender documentation or inform the market about its plans and requirements. Consultations must be carried out before launch of the tender procedure, must not distort economic competition, and must not violate the principles of equal treatment and non-discrimination. Consultations should, as a rule, be done in writing, but calls or meetings may be used subject to certain standards of keeping evidence.
In addition, the contracting authority must identify all persons that contributed to the preparation of the tender and state the significant information that was exchanged in the process. Parts of the documentation that were drafted on the basis of consultations must be clearly identified as well.
Poland has fully implemented Articles 40 and 41 of the Directive, and the relevant national provisions are included in the Polish Public Procurement Act. Pre-procurement consultations are known in Poland as “technical dialogue”. Contracting authorities may use technical dialogue to enable them to properly describe the subject matter of a tender and/or prepare tender documentation including a draft contract. Technical dialogue may only take place in observance of the rules of fair competition and equal treatment of participants, which must also apply to the subsequent tender. Such consultations should be transparent, which means that they should be advertised on the contracting authority’s website, and information that a technical dialogue has taken place should be included in the tender announcement.
For the most part, the Bulgarian Public Procurement Act (the “PPA”) repeats the wording of Articles 40 and 41 of the Directive and introduces some additional requirements.
For example, in addition to the measures provided for protection of competition in Article 41 of the Directive, the PPA requires the contracting authority to extend the tender term in cases where: (i) the procedure was expedited; and (ii) the only bidder was the person advising the contracting authority during the pre-tender consultation. In this case, the contracting authority must extend the deadline for receipt of tenders to the minimum deadline envisaged in the PPA for the specific procedure.
The Directive is implemented for England, Wales and Northern Ireland by The Public Contracts Regulations 2015. Separate but essentially identical, implementing regulations have also been adopted in Scotland. These regulations simply “copy-out” the provisions in the Directive on pre-tender engagements into the national laws of the UK. As a rule, pre-tender consultations with suppliers is seen as good procurement practice and is encouraged. The provisions in Directive 2014/24/EU are seen as confirming the pre-existing position under the previous EU procurement directives and EU law. A UK Government (Cabinet Office) Procurement Policy Note (PPN 04/12) (the “PPN”) includes a “myth-busting factsheet” on pre-procurement engagement. This expressly states that: “Pre-procurement engagement with the market (including talking to potential suppliers) is not prohibited by EU procurement law, nor is it subject to any detailed procedures provided that it does not prevent an effective competition taking place once the procurement has started. In fact, engaging with the market before starting the formal procurement process is best practice and helps to maximise value for money.” The PPN goes on to provide examples of types of pre-market engagement and “do’s” and “don’ts” for authorities when engaging in these exercises.