When it comes to public procurement, the preparatory phase is often underestimated, even though it has a direct impact on the quality of the procedure, the relevance of the bids received and, ultimately, the success of the project. This phase is not confined to drawing up the specifications: it begins well upstream, with the precise identification of needs and the canvassing of the market. So what can and should you do as a contracting authority before a contract is published?

Define your needs rigorously (and lucidly)

Before consulting economic operators, it is essential for the contracting authority to clarify internally the results actually expected, the specific constraints of the project and the underlying strategic or political objectives. This involves taking into account the solutions already in place, identifying their limitations, measuring the resources available (whether human, technical or budgetary), and assessing the desired level of openness to innovative or alternative solutions.

This analysis can take the form of a functional definition of the requirement, an operational diagnosis or a comparative analysis of solutions already implemented in other similar organisations. At this stage, it is essential to involve future users, as well as the technical and legal departments, to ensure a realistic and shared approach.

Analysing the economic market: what you can do

Contrary to certain preconceived ideas, contracting authorities have every right - and even an interest - in actively researching the solutions available before drawing up their specifications. In particular, they can organise a market study, research existing offers, request demonstrations, meet several economic operators, consult technical data sheets or gather feedback.

Initiatives such as a call for expressions of interest (AMI), a market survey or participation in specialist trade fairs are also possible. These initiatives help to assess the maturity of the market, understand trends in terms of technology or contractualisation, and better anticipate the economic constraints of the target sector. It also enables the requirements of the future market to be calibrated against existing practices.

Playing by the rules: what you need to do

These preparatory steps are perfectly legitimate, as long as they do not distort competition or compromise the transparency of the procedure. It is essential to ensure that exchanges with economic operators are traceable and that all parties involved are treated equally. The information shared must remain neutral and general: no preliminary draft specifications may be sent to an operator before the contract is officially published.

Where a prior consultation has been carried out, it is advisable to keep a record of it internally and, where appropriate, to include it in the contract framework documents, such as the award report or a methodological note. However, there is no provision in Directive 2014/24/EU requiring this information to be included in published notices or in the contract documents themselves. However, the contracting authority must take the necessary measures to ensure that an operator's participation in the preparatory phase does not give it an unfair advantage.

In case of doubt, it is always preferable to consult an independent expert or an external advisor to ensure that the procedure is legally and ethically sound.

Formalise and prepare

Once the needs and realities of the market have been clearly identified, the preparatory phase must lead to the formalisation of a coherent set of specifications, aligned with the objectives of the project. This involves describing the functional requirements in detail, choosing the appropriate procedure (invitation to tender, negotiated procedure, competitive dialogue, etc.), thinking about the award criteria and their weighting, and considering any offsetting or inclusion of social or environmental clauses.

It is also a good idea to start thinking about how the bids will be analysed at this stage: a good award criterion always stems from a good strategic objective.

Conclusion

The success of a public procurement contract depends not only on the quality of the bids received, but also on the soundness of the preparatory phase. Better defining your needs, understanding your business environment, engaging in transparent dialogue with the market players: these are all actions that can lay the foundations for a successful contract, both legally and operationally.

Rigorous, concerted and documented preparation is the best investment a contracting authority can make to secure its procedure and maximise the impact of its purchases.

Sources

• European Commission - Guidance on Innovation Procurement
• Public Procurement Portal - Belgian Federal Public Service Policy and Support
• EUR Lex - Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement – including Article 40 on preliminary market consultations
• EU Publications Office - Explanatory Note on Preliminary Market Consultations