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last updated: 22nd December 2016

Before commencing a procurement procedure, contracting authorities may conduct market consultations with a view to preparing the procurement and informing suppliers of their procurement plans and requirements.

For this purpose, contracting authorities may, for example, seek or accept advice from independent experts or authorities or from market participants.

Such advice may be used in the planning and conduct of the procurement procedure, provided that it does not have the effect of distorting competition and does not result in violation of the principles of non-discrimination and transparency.

Pre market engagement can be useful to inform you about the range of solutions/options on offer from the market before you define your exact specification.  It can help you decide if you should split the contract down into smaller lots, it encourages market interest and can provide you with information on appropriate timescales for the tender process.

Further information on how pre market engagement should be carried out is provided in Annex B of the Cabinet Office Procurement Policy Note 04/12.  You could consider using a declaration form issued to suppliers taking part in pre market engagement to set out the basis on which this activity will be conducted.

Contracts Finder Early Engagement Notices and OJEU PIN notices can be used to advertise you wish to undertake pre market engagement.

Prior involvement of suppliers
Where a supplier has advised the contracting authority, whether in the context of pre market engagement or not, or has otherwise been involved in the preparation of the procurement procedure, the contracting authority shall take appropriate measures to ensure that competition is not distorted by the participation of that supplier.

Such measures shall include:

  1. the communication to the other candidates and tenderers of relevant information exchanged in the context of or resulting from the involvement of the supplier in the preparation of the procurement procedure; and
     
  2. the fixing of adequate time limits for the receipt of tenders.

 

The supplier concerned shall only be excluded from the procedure where there are no other means to ensure compliance with the duty to treat economic operators equally and, prior to such exclusion, the supplier shall be given the opportunity to prove that their involvement in preparing the procurement procedure is not capable of distorting competition.

Therefore before conducting any pre market engagement it is a good idea to be really clear with what you are going to do with the information you receive.  Ensure this is made available to other bidders and make sure the suppliers participating in the pre market engagement know this is the case.  Consider including the information as part of the procurement documents or holding a bidder day to bring everyone up to speed.  It may be prudent to talk to the suppliers about the possibility of having a ‘Chinese wall’ between those involved in the pre market engagement and those involved  in the subsequent tender process. 

In respect of incumbent suppliers avoid any discussion that could influence the procurement process or the new contract.  Keep a record of any contract management meetings leading up to the commencement of the new procurement process.

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