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Preliminary consultation: the implementation of informality

BAS > Communication > News > Preliminary consultation: the implementation of informality

In certain procedures and in view of the complexity of their subject, the contracting authorities would, informally (according to inherent legal limitations), consult economic operators – a mechanism which had not been established beforehand due to the fear that such procedures could be contrary to the principle of competition.

With the amendments to the Public Procurement Code, introduced by Decree-Law no. 111-B/2017, of August 31, article 35-A unequivocally foresees a preliminary consultation.

 

The mechanism in question now allows contracting authorities to better define what and how they intend to buy – thus giving priority to procurement planning – by adjusting their needs to the reality and evolution of the market. It is this ratio which enables contracting authorities to use prices obtained following a preliminary consultation as justification for the base price defined in the pre-procurement procedure (see Article 47 (3) of the PPC).

However, it should be noted that the fact that the provision of information to the contracting authority, following preliminary consultations by a market participant, subsequently competing in the procedure (for which it was previously consulted), will create an advantageous situation, thus distorting competition.

Although it is true that the request for information to the market was legally accepted, the legislature did not obviate its previous and constant fear of maintaining and guaranteeing such principle, stating that it could not result in a distortion of competition or breach of the principles of transparency and non-discrimination.

The legislator therefore sets out, as a mechanism for ensuring competition and transparency, the publication in the documents of the procedure (by means of an annex to the program of the procedure or invitation) of “all relevant information exchanged” between contracting authority and economic operator, in the context of a preliminary consultation.

Nevertheless, the reference of the legislator to the communication of “all information” will, it seems to us, give rise to future dilemmas as to the degree of dissemination of the information exchanged between the parties, and several questions will immediately arise that will be subject to a judicial review, relating to the consideration of competition principles, transparency, and non-disclosure of any commercial conditions of a preliminary consultant.

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