Preliminary Market Consultation

Candidates or Tenderers

and

Prior

Involvement

of

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 authoritys 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.