Preliminary Market Consultations

What is a Preliminary Market Consultation?

A preliminary market consultation (PMC) is a pre-tender process undertaken by a contracting authority to communicate with the market or relevant experts to gain more information and understanding of what is available on the market prior to publishing a tender.

Scope for conducting Preliminary Market Consultations

Regulation 40 of the 2016 European Union (Award of Public Authority Contracts) Regulations (S.I. No. 284 of 2016) provides for the use of PMC with a view to preparing the procurement and informing economic operators of the contracting authority's procurement plans and requirements. A contracting authority may seek or accept advice from independent experts, authorities or from market participants. However, such advice must not have the effect of distorting competition, or result in a violation of the principles of non-discrimination and transparency. Regulation 41 requires contracting authorities to take appropriate measures to ensure that competition is not distorted by the participation of any candidate or tenderer involved in the preliminary market consultations.

Circular 05/2023: Initiatives to assist SMEs in Public Procurement encourages contracting authorities to consider, on a case-by-case basis, undertaking PMC prior to tendering in order to better understand the market including the range of goods and services available, market developments, what commercial models are available, the competitive landscape, and the specific capabilities of SMEs. Contracting authorities are encouraged to consider the use of Prior Information Notices (PINs) to provide SMEs with time to consider and form a consortium.

Benefits of conducting Preliminary Market Consultations

When Can I Use Preliminary Market Consultations?

There is no legal requirement for a PMC to be carried out for every procurement. The 2016 Regulations allow a contracting authority to conduct PMC with suppliers and expert bodies before the start of a procurement process, which may facilitate improved specifications, better outcomes and shorter procurement times.

PMC is undertaken during the initial design and planning stage of the project, well in advance of the publication of the contract notice. PMC should not extend into the tendering and award phases of a competition.

Who should be involved in the Preliminary Market Consultations?

The scope of PMC does not need to be limited to potential bidders. Contracting authorities may also seek or accept advice from independent experts or authorities, which may include end users (such as employees and existing or potential clients), subject matter/industry experts and relevant policy leads.

How to Conduct Preliminary Market Consultations

An initial market analysis can be used to determine whether the market is ready and technically able to deliver the requirements, whether any technological advancements or good/service developments are expected, and how many suppliers can provide any solutions to sustainability issues. Market analysis is only one element of PMC. Further elements of PMC could include market engagement (including engagement via eTenders, direct contact with suppliers or events such as a Meet the Buyer) and engagement with end-users, subject-matter or industry experts, and relevant policy leads in the SPP area being considered. Contracting authorities (CAs) can undertake PMC in the following ways:

Contact with Suppliers Directly - CAs can engage directly with the market to understand, gain knowledge and identify what is currently available. It also alerts the market to potential upcoming opportunities. It is essential that any information gathered in this way must be recorded and no advantage is given to any particular supplier when the competition is opened.

Desktop Research - This relates to independent research which can be easily undertaken by CAs to gain publicly accessible information on a topic or market. It can include the use of internet search engines, articles, reports, etc.

eTenders - CAs can undertake a PMC on eTenders to gather further information and carry your market research. CAs can also publish a Prior Information Notice (PIN) to alert the market to a planned procurement. CAs can associate a PIN with a subsequent call for tender. CAs can attach a consultation document (such as a Request for Information, survey or questionnaire) to the PMC or PIN to gather information from the market.

Examples - CAs may wish to contact other bodies that have undertaken similar procurement projects in order to learn from their experiences. CAs can search for historical tenders on eTenders and TED.

Experts - Experts or authorities on the subject matter of the procurement can be included in order to gather relevant information and awareness. Existing or potential end users may also be consulted.

Meet the Buyer Events - Provide opportunities for potential buyers to meet potential suppliers.

Needs Assessment - Needs assessment is a key part of the procurement cycle. It can help to define the subject matter of the contract. Needs assessment also helps the choice of most appropriate specifications. Needs assessment is particularly useful when considering implementing a sustainable public procurement approach. Needs assessment should include consultation with end-users, to ensure that purchases are appropriate to their needs. User consultation might involve:

• A questionnaire or online survey to determine user needs and preferences

• Observation and analysis of existing use patterns

• A review and planning meeting to which all relevant stakeholders are invited

• Inviting users to attend supplier demonstrations held as part of PMC.

Should a tender result from PMC all information should be made available to all potential tenderers to ensure no advantages are created.

Considerations when conducting a PMC

The European Commission’s Guidance on Innovation Procurement (Section 4.1.2) sets out four steps for contracting authorities to consider when conducting a PMC.

What can be discussed during Preliminary Market Consultations?

It is important to focus on improving knowledge and gathering market information to better develop potential tender documents, requirements and specifications. In order to gather valuable information discussions may include the aims and goals expected, potential timescales, any strategic considerations to be included and a main focus on the problem or challenge the potential good/service may either solve or reduce. The main objective to undertaking PMC is to seek advice and gather information; the contracting authority must ensure that any potential competition arising will not be distorted by the participation of any candidate or tenderer that was involved in the PMC phase.

Preliminary Market Consultation as a tool for Strategic Procurement

A PMC can be particularly valuable when adopting an innovative approach to public procurement and assist in incorporating sustainable public procurement (SPP), such as green and social considerations, in a procurement process. PMC can also facilitate development of a SPP Strategy and help contracting authorities understand the capacity of the market, including SMES, to meet SPP requirements. PMC can support contracting authorities when developing specific tender documents. However requirements and specifications in tender documents should not be distorted or tailored by this information to the advantage of those who participated in the preliminary market consultations. The key EU principles of transparency, equal treatment, open competition and non-discrimination must be respected when undertaking a PMC.

SMEs

Contracting authorities can use PMC as means to providing the market with early notification of an planned procurement opportunity. For contracts above EU threshold, contracting authorities may wish to consider the publication of a Prior Information Notice (PIN) on the eTenders website setting out their intentions with respect to planned procurements. This will alert the market to upcoming procurement opportunities. Communicating long-term procurement plans to the market gives the market time to react and develop solutions. This is particularly important in the case of large and complex contracts and where SMEs might need time to find partners for joint or consortia bidding.

Innovation Procurement

Innovation in procurement may come in the form of Pre-commercial Procurement (PCP), Public Procurement of Innovative Solutions (PPI) or an Innovation Partnership. By contacting the market and exploring what options are currently available a contracting authority will be able to make a more informed decision on whether an innovation procurement procedure is the most suitable option. For example, PMC can also be used to gather information so that the contracting authority has a better understanding of an area and may provide assistance in deciding the type of good/service required. The European Commission’s Innovation Partnership Quick Guide flags market consultation as being an essential task prior to commencing an innovation partnership for two reasons:

• to determine that nothing on the market exists and so the process can be used; and
• to prepare the market for a new type of procurement.

Socially Responsible Public Procurement

The European Commission’s ‘Buying Social – A guide to taking account of social considerations in public procurement’ includes information on market dialogue and preliminary market consultation for socially responsible public procurement. The guide outlines that market dialogue can

“improve public buyers’ understanding of the capacity of potential bidders to meet social aims and ambitions. Dialogue can increase your trust and credibility with suppliers, and many welcome the chance to react to social requirements ahead of the procurement launch. In short, market dialogue can help create the conditions needed to deliver SRPP both internally within the public buyer and in the market.”

The Guide also includes examples of questions for contracting authorities to consider before engaging with the market to analyse how suppliers can meet social needs for the planned good, service or work.

Green Public Procurement

Contracting authorities can use preliminary market consultation to assess whether the market can support the environmental criteria being considered for inclusion in the procurement. The European Commission’s GPP Training Toolkit includes a module (Module 6) on market engagement. The guidance accompanying the presentation includes examples and frequently asked questions.

Examples of Preliminary Market Consultations

Further Information

Any public sector body interested in learning more about Preliminary Market Consultations can contact the OGP via support@ogp.gov.ie