Market Consultation

A market consultation is the formal pre-procurement engagement tool provided for in Article 40 of Directive 2014/24/EU. It allows contracting authorities to seek advice from independent experts, authorities, or suppliers that may be used in the planning and conduct of the procurement, provided measures are taken to ensure that competition is not distorted and that the principles of non-discrimination and transparency are respected.

What is a Market Consultation?

Article 40 of Directive 2014/24/EU explicitly permits and regulates market consultations. The provision acknowledges that buyers can gain valuable knowledge from the market before they specify a requirement, and that this knowledge can produce better procurement outcomes without compromising fair competition, provided the process is managed carefully.

Common formats for market consultation include the following.

Requests for information (RFI). The buyer publishes a written questionnaire or brief inviting suppliers to answer questions about their capabilities, available solutions, typical contract structures, and market pricing. Responses are analysed but do not form part of any formal evaluation.

One-to-one supplier meetings. The contracting authority holds individual meetings with a range of suppliers, often including both established market participants and innovative newcomers. Notes from these meetings inform the procurement design.

Supplier days or webinars. The buyer convenes a group of interested suppliers to present the planned requirement and invite questions and suggestions. This is more efficient than multiple bilateral meetings but allows less depth of discussion.

Published prior information notices inviting comment. Some authorities publish draft specifications or requirement summaries as part of a prior information notice and invite written comment from the market.

The critical legal obligation arising from Article 40 is the obligation to prevent distortion. If a supplier has participated in a market consultation in a way that may distort competition (for example, by helping to draft the specification), the contracting authority must take appropriate measures to ensure that participation does not confer an unfair advantage. These measures include sharing information provided by the involved supplier with all other tenderers, and extending time limits. In the most serious cases, the authority may exclude the involved supplier from the formal procedure.

Why it matters for bidders

Participating in a market consultation before a formal procurement launches gives you direct access to the buyer's thinking at the stage when the specification is still being shaped. You can correct misunderstandings, highlight what the market can realistically deliver, propose alternative approaches, and introduce the buyer to capabilities they may not have known existed.

The risk is that your input shapes a specification in ways that, intentionally or not, favour your approach. This can create a perception of unfair advantage and may lead to challenges from competitors. Suppliers should participate constructively but avoid providing input so specific to their own products that it could constitute specification writing.

Example

A Swedish transport authority plans to procure an integrated ticketing system across its regional network. Before publishing a contract notice, it publishes a request for information on TED and holds six bilateral supplier meetings with a range of technology providers. Based on the responses, it revises its functional specification to remove requirements that the market universally flagged as technically impractical, and adopts an open API standard recommended by multiple suppliers. It publishes a summary of the consultation and all relevant information with the formal contract notice.

Frequently Asked Questions

Is a market consultation mandatory before a procurement?

No. Market consultation is a permitted tool, not a requirement. However, for complex, high-value, or innovative procurements, buyers who skip market consultation often discover problems with their specification only after receiving tenders, which is much more costly to correct.

Can a supplier who participated in market consultation still bid?

Yes, in most cases. Article 40 requires the contracting authority to take measures to prevent distortion rather than to exclude involved suppliers automatically. The authority decides on a case-by-case basis whether exclusion is necessary. Automatic exclusion of any supplier who had pre-procurement contact with the buyer would deter market engagement.

How is a market consultation different from preliminary market engagement?

Preliminary market engagement is a broader term that encompasses all forms of pre-procurement engagement, including market consultation. Article 40 provides the specific legal framework for market consultation as a distinct activity. In practice, the terms are often used interchangeably in procurement guidance.

Where are market consultation notices published?

Market consultations may be published on TED (often as prior information notices or as standalone market consultation notices), on national procurement portals, or on the buyer's website. In some member states, publication requirements for market consultations differ from those for formal contract notices.