Reg. 41 (PCR 2015)

Prior involvement of candidates or tenderers

In: Procure > Selection stage

Overview

This regulation states that, where a supplier is participating in a procurement procedure and has been involved in the preparation of that procurement (in the context of regulation 40 PCR 2015 or otherwise), the contracting authority must take appropriate measures to ensure that competition is not distorted by the participation of the supplier. Regulation 41 also applies where a supplier participating in a procurement is connected to another supplier which has been involved in the preparation of the procurement procedure.

Appropriate measures must include:

  • informing all other suppliers of any relevant information exchanged with the supplier(s) involved in the preparation of the procurement procedure, and
  • allowing adequate time for the receipt of tenders, i.e. by allowing the other suppliers enough time to review the information (insofar as the information might impact on tenders).

Contracting authorities should exclude suppliers on the basis of their prior involvement, only where there are no means available to ensure that all suppliers are treated equally (complying with the duty in regulation 18(1); principles of procurement). Any exclusion on this basis should only take place once the supplier concerned has been given an opportunity to prove that its prior involvement is not capable of distorting competition.

Objective at this commercial stage

Appropriate measures should be put in place to ensure that the participating supplier’s prior involvement in the preparation of the procurement will not have the effect of distorting competition.

Key considerations at this commercial stage

Contracting authorities should:

  • ensure that all necessary steps are taken to prevent or remedy, as appropriate, any identified potential or actual distortion of competition (including, where necessary, the exclusion of a supplier)
  • ensure that systems and procedures in place to identify and remedy potential or actual distortions of competition, are enforced consistently and proportionately
  • ensure that a robust audit trail is maintained with respect to any decisions made in relation to preventing, identifying and remedying any potential or actual distortion of competition
  • ensure that any supplier facing disqualification as a result of its prior involvement is provided a reasonable opportunity to demonstrate that its prior involvement is not capable of distorting competition.

See also in the Procurement Act 2023:

  • Section 16: Preliminary market engagement

Additional support and guidance

Make sure you:

  • read the regulation
  • seek legal and commercial advice in the context of specific procurements
Read the regulation

This applies to