Market Exploration in Procurement Law

Market exploration in procurement law: gathering information about the market before tender procedures. Art. 40 Directive 2014/24/EU, § 20 BVergG 2018, § 28 VgV.

Definition: Market exploration is the gathering of information by the public contracting authority, permitted before the launch of a tender procedure, about market structure, available solutions, technical possibilities and market prices, in order to prepare the tender appropriately.

Last updated: January 2026 · Legal basis: Art. 40 Directive 2014/24/EU, § 20 BVergG 2018, § 28 VgV

What is market exploration?

Market exploration refers to the phase before the actual tender procedure, in which the contracting authority gathers information about the relevant procurement market in order to develop a sound and appropriate tender. It includes the analysis of available products and services, the collection of market information from potential bidders, and the assessment of technical and economic possibilities.

Market exploration is expressly permitted in law and is even encouraged by the procurement legal system, since good preparation enhances the quality of the tender and thus of the resulting contract. However, it must be kept strictly separate from the procurement itself and must not be used to favour particular companies.

Significance and function

Careful market exploration is a prerequisite for realistic specifications, an appropriate cost estimate, and the choice of the right procedure type. Contracting authorities that do not know the market risk faulty specifications, unrealistic deadlines, or an award price that deviates significantly from market levels.

As part of market exploration, the contracting authority may also involve external market participants – that is, potential bidders. This so-called prior market consultation (Art. 40 Directive 2014/24/EU) allows authorities to consult companies, obtain expert advice, and commission technical studies.

The information obtained serves solely to prepare the tender. It must not result in companies that took part in the market dialogue being favoured in the subsequent procedure.

Conflict-of-interest risk and documentation duty

The central risk of market exploration is the conflict of interest: companies that participated in the market consultation could gain a competitive advantage from their knowledge of the tender planning. Art. 40(2) Directive 2014/24/EU therefore obliges the contracting authority to pass on all information exchanged in the course of the market consultation to all potential bidders and to set reasonable deadlines for the submission of tenders.

Companies that have advised the contracting authority in the preparation phase may be excluded from the procedure if no other measures can guarantee equal treatment (§ 20 BVergG 2018, § 7 VgV).

The contracting authority is required to document the market exploration: what information was obtained, from whom, and how it was ensured that no inadmissible influence on the procedure took place.

Legal basis

Prior market consultation was expressly regulated for the first time in Art. 40 of Directive 2014/24/EU and has been transposed into national procurement law.

Art. 40 Directive 2014/24/EU – Prior market consultations
§ 20 BVergG 2018 – Prior market exploration (Austria)
§ 28 VgV – Market exploration (Germany)
§ 7 VgV – Conflicts of interest (Germany)

Related terms

FAQ

May a company that took part in the market exploration submit a bid later? In principle yes, provided that suitable measures ensure that no competition-distorting information advantage remains. This can be achieved by passing on all information in full to all bidders. If a conflict of interest cannot be ruled out, the company concerned may be excluded.

Must the contracting authority carry out a market exploration? There is, in principle, no obligation to conduct market exploration. However, it is advisable, particularly for innovative or complex procurement projects in which the contracting authority does not have a complete overview of the market.

How should market exploration be documented? The contracting authority should record which companies were contacted, what information was exchanged, and what measures were taken to safeguard equal treatment. This documentation forms part of the procurement file.

Last updated: January 2026 All information without guarantee. For legally binding advice, please contact a law firm specialising in procurement law.