Executive Summary
This information sheet discusses legislation related to bidders’ involvement in feasibility
studies and other advance research work, and their subsequent ability to participate in a
member states’ public procurement process. Pertinent provisions in the current EU
legislation (EU Utilities Directive 2004/17) and provisions proposed in the revised Utilities
Directive, the WTO Government Procurement Agreement, and EU case law are discussed
below.
According to the EU Utilities Directive 2004/17 and its proposal for a revised version, the
WTO Government Procurement Agreement and EU case law, it is possible for a company to
participate in both the feasibility study and the project’s subsequent call for tender if the
company can demonstrate that this will not distort competition in the subsequent tender
process. The basic principles of transparency, equality of treatment of all bidders and fair
competition are the basis for securing the participation in both feasibility studies and the
subsequent call for tender. In negotiating with the contracting authorities, the company
should make clear that it will release all the information that contracting authorities would
deem necessary to conduct a fair and non-discriminatory competition in the actual call for
tender.
1) EU Utilities Directive 2004/17 “On the Procurement Procedures of Entities,
Operating in the Water, Energy, Transport, and Postal Services Sectors”
The EU Directive 2004/17 does not contain any specific provision or article on this topic.
However, Recital 15 of the Directive states that:
“Before launching a procurement procedure, contracting entities may, using a technical
dialogue, seek or accept advice which may be used in the preparation of the specifications,
provided, however, that such advice does not have the effect of precluding competition.”
Recitals are explanatory notes attached to a Directive: they are not legally binding, but
they explain how the Directive should be interpreted on specific points.
For the full text of the Directive, click here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:134:0001:0113:en:PDF
2) Proposal for a revised EU Utilities Directive COM(2011) 895
The proposal for a revised Utilities Directive published by the EC in 2011 includes a specific
article that makes reference to the need to guarantee transparency, but also to ensure
that bidders can only be only excluded as a last resort option, that they may be given an
opportunity to prove they will compete on an equal basis with other participants. This is
only a proposal, but it demonstrates the Commission’s position. Article 53 addresses this
issue:
Article 53 Preliminary market consultations
1. Before launching a procurement procedure, contracting entities may conduct market
consultations in order to assess the structure, capability and capacity of the market and
to inform economic operators of their procurement plans and requirements.
For this purpose, contracting entities may seek or accept advice from administrative
support structures or from third parties or market participants, provided that such
advice does not have the effect of precluding competition and does not result in a
violation of the principles of non-discrimination and transparency.
2. Where a candidate or tenderer or an undertaking related to a candidate or tenderer
has advised the contracting entity or has otherwise been involved in the preparation of
the procurement procedure, the contracting entity shall take appropriate measures to
ensure that competition is not distorted by the participation of that candidate or
tenderer.
Such measures shall include the communication to the other candidates and tenderers of
any 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. The
candidate or tenderer concerned shall only be excluded from the procedure where there
are no other means to ensure compliance with the duty to observe the principle of equal
treatment.
Prior to 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 measures taken shall be documented in the individual report
required by Article 94.
For the full text of the proposed Directive, click here:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0895:FIN:EN:PDF
