Q&As

Is there any case law or guidance on preliminary market consultation in public procurement? What should a contracting authority do if it thinks there is a conflict of interest?

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Produced in partnership with Brendan Ryan of Pinsent Masons
Published on LexisPSL on 27/01/2017

The following Public Law Q&A Produced in partnership with Brendan Ryan of Pinsent Masons provides comprehensive and up to date legal information covering:

  • Is there any case law or guidance on preliminary market consultation in public procurement? What should a contracting authority do if it thinks there is a conflict of interest?

Although pre-procurement engagement with the market is not a new feature of public procurement, the Public Contracts Regulations 2015, SI 2015/102 (PCR 2015) for the first time expressly recognise it in legislation and provide guidance on its operation.

SI 2015/102, reg 40(2) states that before commencing a public tender process, a contracting authority may ‘seek or accept advice from independent experts or authorities or from market participants'. The use of such advice must not result in a distortion of competition or in a breach of the principles of non-discrimination and transparency.

If a party which provided such advice later participates in the tender process, the contracting authority must take ‘appropriate measures’ to ensure that competition is not distorted, which can include the sharing with other tenderers of all relevant information exchanged in the course of pre-procurement dialogue, and it must ensure that adequate time limits are fixed (presumably with the objective of mitigating any time advantage which the consultant might have had).

Much of a contracting a

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