Concentrated in two articles of Law 98/2016 on Public Procurement (the “Romanian Public Procurement Law”), the preliminary market consultation is one of the novelty of this domain. Nevertheless, as regards prior involvement of candidates or tenderers, we note that the previous legislation contained some specific wording.
For the first time, prior market consultation is expressly stated in the European Directive 2014/24/EU (the “Classic Directive”) as follows: “Before launching a procurement procedure, contracting authorities may conduct market consultations with a view to preparing the procurement and informing economic operators of their procurement plans and requirements”. Such procedure gives contracting authorities the possibility to identify the available options and solutions for its needs of procurement and consequently, to preview the required conditions for the award of the contract.
Even though the Classic Directive does not impose any particular cases in which preliminary market consultation may be used, we note that the Methodological Norms for the application of the Romanian Public Procurement Law state that when the contracting authority intends to procure works, supplies or services having a high technical, financial or contractual complexity, or related to domains with a fast technological progress, it shall publish a consultation announcement which shall be advertised in the electronic public procurement system (Ro. SEAP), as well as by any other means. The announcement shall cover a description of the contracting authority’s objectives and any technical/financial and/or contractual constraints in relation to which the consultation is made.
The contracting authority may consider the opinions received within the consultation if relevant or may conduct meetings in relation thereto. In any case, the procurer is held to publish the result of the public consultation no later than the initiation of the public procurement procedure.
Furthermore, the Classic Directive expresses that “for this purpose, contracting authorities may for example seek or accept advice from independent experts or authorities or from market participants. That advice may be used in the planning and conduct of the procurement procedure, provided that such advice does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency”. It is thus very clear that such preliminary market consultation may raise a significant competition issue especially in what regards the technical specifications and the award criteria.
Romanian Public Procurement Law goes in more detail stating that, when preparing the procurement and organizing the award procedure, the contracting authority has the right to use or implement the opinions, suggestions or recommendations received within the market consultation phase, provided that such use or implementation does not result in a distortion of competition and/or breach of non-discrimination and transparency principles.
As regards the instruments of the contracting authority when dealing with a matter of assessing whether there is a potential distortion of competition following the preliminary market consultation or prior involvement of candidates or tenderers, Romanian Public Procurement Law expresses that the contracting authority should take all necessary measures. Such measures include the communication to the other candidates and tenderers of relevant information exchanged in the context of or resulting from the involvement of the candidate or tenderer in the preparation of the procurement procedure and the fixing of adequate time limits for the receipt of tenders. Furthermore, before any such exclusion, candidates or tenderers shall be given the opportunity to prove that their involvement in preparing the procurement procedure is not capable of distorting competition.
The obligation of the contracting authority to avoid distortions of competition applies not only in case the prior involvement of candidates or tenderers has taken place within the preliminary market consultation, but also in case the candidates or tenderers have advised the contracting authority as part of consultancy services, or has participated in any other way to the preparing of the award procedure.
It is relevant in this regard the case-law of the Court of Justice of the European Union which in Joined Cases C-21/03 and C-34/03 Fabricom (http://curia.europa.eu/juris/liste.jsf?num=C-21/03&language=en) stated that is not permitted a rule (…), “whereby a person who has been instructed to carry out research, experiments, studies or development in connection with a public works, supplies or services contract is not permitted to apply to participate in or to submit a tender for those works, supplies or services and where that person is not given the opportunity to prove that, in the circumstances of the case, the experience which he has acquired was not capable of distorting competition”.
It appears that the contracting authority should pay attention when excluding a potential tenderer for reasons related to its prior involvement in the procedure preparing. The analysis made by the contracting authority in this regard should not be formal and should consider as well a comparison of the tender with the rest of the tenders received from tenderers not involved in the procedure preparing.