Market consultation before a public tender: how to get something out of it as a bidder

What is a market consultation?

A market consultation is a conversation between a public buyer and the market before a tender starts. In the Netherlands it is called a marktconsultatie. The buyer tests its plans: is the need clear, which solutions exist, and is the timeline workable? PIANOo, the Dutch public procurement expertise centre, describes it as free in form and non-binding. It is explicitly not part of the tender procedure, but it does shape it.

For the buyer, it is a way to set requirements the market can actually meet. The Dutch Proportionality Guide (section 2.5) says there is no need to hold back from talking to potential bidders, as long as transparency is properly safeguarded. For you, it is the only stage in which you can help shape the contract itself, instead of only reacting to what is already on the table.

Which rules apply to a market consultation?

A market consultation is allowed, as long as it does not distort competition. That is set out in article 40 of the EU public procurement directive 2014/24/EU. The Aanbestedingswet 2012 (the Dutch Public Procurement Act) mentions the market consultation only briefly, in article 2.25, and has no separate rules for it. The general principles of equal treatment and transparency do apply.

More important for you is article 2.51 of the Act, based on article 41 of the directive. It covers companies that were involved in preparing the tender, for example by giving advice. The buyer must then take appropriate measures so that this involvement does not give them an advantage. In practice: the information you received in the consultation is also given to the other bidders in good time, and the time limit for bids is long enough for those who did not take part (article 2.51, second paragraph).

Exclusion is the last resort. It is only allowed if the distortion of competition cannot be remedied in a less drastic way (article 2.87a, first paragraph). And before any exclusion, you get the chance to show that your involvement did not distort competition (article 2.51, fourth paragraph). The risk is greatest for those who do more than share their views, for example by helping to write the tender documents as an adviser.

Thinking along in a market consultation is fine. Helping to write the tender makes you vulnerable.

Forms: from questionnaire to one-to-one meeting

The buyer chooses the form. PIANOo’s guidance names these variants among others, and they are often combined, for example a written round followed by meetings.

• WrittenQuestionnaireYou answer questions about the contract, the market and the timeline. This resembles what companies call a request for information. See also RFI, RFP and RFQ.
• PlenaryMarket day or presentationThe buyer presents its plans to all interested parties at once. Useful for listening and asking questions. Watch what you say with competitors in the room.
• OralOne-to-one meetingA meeting with you alone. PIANOo advises buyers to write a report of it and to submit that report to you for approval.
• In depthTechnical dialogueThe buyer tests a worked-out set of requirements with the market. At this stage the discussion is about the actual requirements.

Then there is the prior information notice (vooraankondiging), with which a buyer announces contracts it plans to tender. It is optional and gives you no rights. But under certain conditions the buyer can use it to shorten the minimum time limit for bids, which leaves you less time than usual. If you see a prior information notice in your field, start preparing now. Since October 2024, a prior information notice can also serve as the call for competition in some procedures on TenderNed: no separate contract notice follows.

Where do you find a market consultation?

In the Netherlands you find market consultations on TenderNed, the national tender platform. PIANOo advises buyers to publish the invitation and the report there. A buyer creates the consultation as a separate publication, which then appears on the notices platform. You can send the buyer a message through the messaging module, with documents attached. How to set up TenderNed so you do not miss anything is explained in what is TenderNed.

Not every consultation is on TenderNed. TenderNed only supports open consultations. A buyer that invites a few companies directly does so outside the platform. So also keep an eye on the websites of public bodies in your region, and on events of your trade association.

Afterwards there should be a report, in broad terms and without naming companies. On TenderNed it appears with the consultation itself, or with the later contract notice under “Gerelateerde publicaties” (related publications). Companies that took part get a message through TenderNed when the tender is published.

What should you share in a market consultation, and what not?

Share what makes the contract better, not what makes you vulnerable later. Anything you say may end up, in broad terms, in the public report. PIANOo advises buyers not to include company names or commercial information in the report, but also to take the Dutch Open Government Act (Wet open overheid, Woo) into account. So ask in advance how the buyer will handle confidential information, and mark what is confidential.

For comparison: during a tender procedure, a buyer does not disclose information you submit as confidential, including trade secrets (article 21 of directive 2014/24/EU). A market consultation is not a procedure. So do not simply assume the same protection applies.

How do you exert influence without weakening your position?

By talking about the contract, not about yourself. In a consultation, a buyer looks for arguments that apply to the whole market. A proposal that also helps your competitors is more likely to be adopted than one that only helps you. PIANOo explicitly advises buyers not to tailor the tender to one company.

These topics are often on the agenda, and this is where you have the most influence:

• RequirementsProportionatePoint out requirements heavier than the contract needs, such as a high turnover requirement or large references. Refer to the Proportionality Guide. Changing them now is easier than later through the clarification round.
• SizeLotsDutch law says a buyer does not bundle contracts unnecessarily and in principle divides them into lots (article 1.5 of the Act). Explain which division is workable, for example by region or by service.
• TimeTimeline and termSay what a realistic bid period, start-up period and contract term is. A start-up period that is too short disadvantages everyone except the incumbent.
• SustainabilityAchievable ambitionShow what the market can already do on sustainability and circularity, and what will be possible in a few years. That leads to criteria where you can earn points, instead of requirements nobody meets.

If you are the incumbent supplier, you know more than others. That helps in the conversation, but it is also a reason for care: the buyer must make sure your knowledge does not become an advantage, and a company that visibly pulls the tender its way stands out. More on that position in the incumbent supplier.

How to prepare for a market consultation

1. 1Read everything availableThe consultation document, any draft documents, the prior information notice and the ground rules. Note the deadline and the required form of your response.
2. 2Decide whether it is worth itDoes the contract fit your company and region? A consultation takes time, but it is the cheapest place to make a contract fit better.
3. 3Choose your three pointsWhich requirements, lots or time limits make the difference for you and for the market? A response with three well-supported points works better than a long list.
4. 4Support them with factsUse experience from earlier contracts, standards and the Proportionality Guide. For each point, propose an alternative that also serves the buyer’s purpose.
5. 5Separate public from confidentialAsk how the buyer handles confidential information. Mark what is confidential, and leave out prices and trade secrets.
6. 6Record what you saidKeep your response and the report of any meeting. Check that the report is accurate before you approve it.

What do you do after the market consultation?

Read the report. It shows what the buyer heard and which direction the tender is taking. Compare it with your own input: what was adopted, and what was not? That tells you something about the buyer’s priorities.

Use the time until publication. Get your company profile, certificates and references in order, arrange any partnership, and make a first bid/no-bid assessment. When the tender is published, your time then goes into writing instead of searching.

And do not expect a guarantee. A market consultation or prior information notice gives you no rights. If the tender turns out differently from what you hoped, the clarification round (nota van inlichtingen) is still the place to challenge requirements.

You do not win the tender in the consultation. But you can make sure you compete on terms that make sense.