Early market engagement (EME) can be considered an essential aspect of an organisation’s procurement planning process. At the end of last month, the Crown Commercial Service issued guidance on how an organisation can successfully carry out early market engagement and so in this article we seek to summarise the key areas detailed in the guidance.
What is early market engagement and why is it needed?
EME is conducted prior to procurement and provides an opportunity for an organisation to engage with the collective market to understand whether potential suppliers have the capability and capacity to provide the goods and services it requires before it makes any purchases.
EME is recommended because it has a mutual benefit for the organisation looking to carry out a procurement and the wider market in general. It is regarded as best practice and will be beneficial for any type of contract that an organisation wishes to procure, regardless of value or complexity.
EME allows organisations looking to procure goods and/or services to:
- ask important questions to potential suppliers – this allows organisation’s to refine its requirements and create clearer specifications
- openly discuss the problems it is facing, to help identify solutions, or even give the market an opportunity to develop solutions to solve the problem(s)
- gain a better understanding of what the market can supply i.e. products, staff etc, any contractual constraints and whether the budget, resourcing and timescales are achievable and
- raise awareness of the potential procurement, which in turn could encourage competition and increase the number of potential bidders.
For the market i.e. prospective suppliers, EME allows them to:
- prepare to supply to an organisation’s requirements
- prepare resources to respond to an organisation’s market engagement and
- influence and shape the market in order to better meet the organisation’s requirements. Notice of procurement allows time for suppliers to potentially develop new or modify current offerings.
How to engage with suppliers?
Before commencing a procurement procedure, you will need to ensure you’re compliant with the Public Contracts Regulations 2015 (PCR 2015). This applies to preliminary market consultations, which are specifically referenced in Regulation 40 of the PCR 2015) and state:
“advice may be used in the planning and conduct of the procurement procedure, provided that it does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency”.
This means that all EME conducted should be open, transparent, and fair to all suppliers and no competitive advantage should be handed to a potential supplier because of any preliminary consultation.
It is important that you keep a detailed record of all conversations taken as part of EME and any relevant information is shared in the specification/requirements of the procurement. You must also ensure that you take appropriate measures to maintain intellectual property and commercial confidentiality towards all suppliers to encourage participation and ensure fairness.
There is no rule on the number of suppliers an organisation can consult with, and it is recommended to liaise with a broad range of suppliers which represent the collective market at large. You should however ensure that the number of suppliers you aim to engage with is proportionate to the value and level of complexity of the proposed procurement process.
For example, a simple internet search may be sufficient for low value purchases or engaging with previously approved suppliers, whereas high value and/or complex purchases would require a detailed and more thorough EME to ensure the needs of the organisation are met.
How to carry out EME and gather the necessary information?
It is the decision of the organisation looking to buy goods and/or services to determine how it will run the EME prior to the procurement and its scale will depend on the complexity and value of the procurement.
However, EME will be most effective where the market is provided with as much information regarding the potential procurement as possible. The following is the type of information that an organisation would be expected to provide to suppliers as part of its EME:
- the organisation’s name, department, background and details of the project subject to procurement
- what the organisation would like to achieve from the procurement
- the phases/aspects of the potential procurement that the organisation would like feedback on
- information the organisation would like the suppliers to provide and the deadline to respond by, and
- an indication of timescales, duration and location for the potential procurement.
Contracting authorities can use various methods to engage with the market, including:
- face-to-face meetings with suppliers
- questionnaires and/or surveys, and
- supplier conferences, workshops and/or webinars
Post- EME procurement process
On completion of EME, an organisation should review and use all information and feedback received from suppliers to refine its requirements and specification for the procurement that will follow.
However, the use of such information/feedback should not hinder or discriminate against certain suppliers or favour particular suppliers, as this would be in breach of the PCR 2015.
Throughout EME and upon reaching its conclusion, all procuring officers should maintain the principles of honesty, transparency and confidentiality and where appropriate engage with suppliers to help increase interest in the procurement that is to follow.
EME is therefore crucial to the planning process of a procurement and will ensure that an organisation attains the best value for the goods, works or services it wishes to procure.
You may be interested in...
Legal Update - Procurement Act
The Even Lighter Touch Regime
Online Event - Procurement Act
Procurement reform - change is coming, are you ready? Part 2
On-Demand
Provider Selection Regime – change is coming, what does it mean for you?
Published Article
Infrastructure and social value in public contracts – making it concrete
On-Demand - Procurement Act
Procurement Reform - Change is coming, are you ready?
Legal Update - Procurement Act
Procurement Bill: Competitive flexible procedure, how will this work in practice?
Legal Update - Procurement Act
Procurement Bill - Are they still playing ping-pong?
Legal Update - Procurement Act
Procurement Act 2023: Getting Ready for Reform - the countdown is on!
Legal Update
PPN 08/23: using standard contracts
Press Release
Browne Jacobson advising the Welsh Government on the delivery of significant number of renewable energy projects
Legal Update
Guidance on contract changes: James Waste Management LLP v Essex County Council
Legal Update
Case summary: the importance of bringing a procurement claim within the appropriate time limits
Legal Update - Procurement Act
New obligations for Welsh public bodies on social partnership and socially responsible procurement
Article
Challenging procurement decisions by way of Judicial Review - the key principles
Legal Update
Australia and New Zealand Free Trade Agreement drives changes to the Public Procurement rules
Published Article
Amendments to Procurement Bill: Navigating sanctions and supplier bans and impact on the construction sector
On-Demand
'Getting ready to reform – preparing for the new Procurement Bill' webinar
Legal Update
Changes to the Standard Selection Questionnaire effective from 1 April 2023
Legal Update - Procurement Act
Automatic suspension and procurement law
Press Release
Browne Jacobson collaborates with The GLAA and University of Nottingham to tackle modern slavery and human trafficking
Legal Update - Public matters newsletter
Public matters - February 2023
Legal Update - Procurement Act
Procurement Bill debarment regime and ECHR issues
Published Article
Digital Twin Technologies: key legal contractual considerations
Guide - Procurement Act
Public procurement: key facts and compliance considerations
Published Article
Reaching cloud nine? Public procurement for cloud-based services
Opinion - Procurement Act
Procurement Bill - what’s new in 2022?
Legal Update
CCGs’ conduct “sufficiently serious” for award of damages in High Court procurement case
This case provides a reminder to contracting authorities that whilst the bar for an award of damages in procurement cases is high, following the Supreme Court ruling in Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2017] 1 WLR 1373, it is not insurmountable when a contracting authority has acted with disregard to the Public Contracts Regulations 2015 (PCRs). There is also further guidance as to the use of frameworks
Legal Update - Procurement Act
Pre procurement planning the importance of early market engagement
On-Demand - Procurement Act
Get ready for reform: The new Procurement Bill
Legal Update - Procurement Act
The Procurement Bill - selection, exclusion, conflict of interests and debarment
Legal Update
The Introduction of the Social Partnership and Public Procurement (Wales) Bill by the Welsh Government
Published Article
Sustainability in construction
The climate emergency has reached a point where real and substantial damage is being caused to both the planet and society. There has been a shift from planning and theorising the most effective solutions, to a phase where practical, efficient, and sustainable solutions are required at speed.
Opinion
Responding to Grenfell – Slow progress is better than none
As the Grenfell Inquiry continues, how have the Phase 1 recommendations changed the fire safety and building safety landscape?
Legal Update
Modern Slavery and the NHS – new challenges on the horizon for NHS bodies and their suppliers
According to a report published by the Financial Reporting Council in April, modern slavery generates an estimated US$150 billion annually and encompasses 40 million people in slavery globally.
Legal Update - Procurement Act
Public procurement: Plus ça change, plus c’est la même choses
Legal Update
Contracts with Russian and Belarusian suppliers
We are all aware of the unfolding situation in Ukraine following the invasion of Russian forces, and the support afforded to Russia by Belarus. The UK Government has, in response to the conflict, issued sanctions on companies and individuals.
On-Demand - Procurement Act
Procurement Bill - key changes and how will it affect you?
On-Demand
Commissioning Health Tech in an ICS World
We invite you to watch our on-demand webinar which looks into how healthtech is commissioned from a health and tech perspective.
Legal Update
Progress of procurement reforms
As we look ahead to planned and potential legal developments in 2022, one area we have been keeping a close eye on is the progress of the Government’s planned reforms to procurement law.