Procurement in a Nutshell – pre-procurement market engagement
6th March, 2015
In this Procurement in a Nutshell update, we will be looking at the proposed rules in relation to pre-procurement market engagement arising out of the Small Business, Enterprise and Employment (SBBE) Bill, part of the Government's agenda to increase SMEs' access to public procurement.
The Cabinet Office published a policy paper with illustrative regulations in January 2015 following a consultation on the bill.
The draft regulations are available in full on the Cabinet Office website here.
To save you time and to help all practitioners, each week we will issue succinct notes on key changes.
What’s new?
The illustrative regulations published would place additional obligations on Contracting Authorities (CAs) who carry out market engagement before commencing a procurement procedure.
The 2015 Public Contracts Regulations already make provision for market engagement, but the proposed regulation 4 imposes a general obligation on CAs to carry out their pre-procurement market engagement in a “manner calculated to increase awareness of and interest in bidding for the procurement by relevant SMEs, VCSEs [voluntary, community and social enterprises] and other economic operators.”
Suggested measures to meet this obligation include:
- Publishing a Prior Information Notice
- Advertising the planned procurement using media that is free to access for potential bidders
- Publishing the planned procurement on an internet based portal that is free to access and which lists future planned procurements
- Carrying out a consultation exercise with or holding an event for potential bidders
- Holding documented meetings with potential bidders
However, the regulations make it clear that CAs are not required to do anything that is disproportionate to the value or complexity of the procurement itself.
They also state that the outcome of any pre-procurement market engagement can be used in the planning and/or conduct of the procurement procedure itself, so long as doing so does not distort competition or violate the treaty principles.
Why it is important?
CAs need to be aware of the SBEE Bill and any additional obligations that its provisions may impose on CAs in order to widen SME access.
Those CAs who participate in pre-procurement market engagement need to consider how they will comply with the obligation to run a process which will increase awareness of and interest in bidding for the procurement by SMEs and others, with appropriate reference to any guidance issued by the Cabinet Office.
Once passed, these Regulations will sit alongside the 2015 Public Contracts Regulations.
How can I find out more?
If you have any queries on the issues raised or on any aspect of procurement, please contact us via our procurement hotline on 0191 204 4464.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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