What is a Prior Information Notice?
A prior information notice (Ex-ante-Ausschreibung or Vorabinformation) is an advance publication through which a contracting authority informs the market about procurement procedures it plans to conduct in the foreseeable future. In the context of EU procurement law, there are two distinct types of prior information notices, and the term "ex-ante" specifically refers to the voluntary transparency notice published before a direct award without prior publication.
The voluntary ex-ante transparency notice is used when a contracting authority intends to award a contract without a competitive procedure, typically in cases where it believes the conditions for a negotiated procedure without prior publication are met. By publishing this notice, the contracting authority signals its intention to the market and provides a brief window for potential competitors to challenge the decision before the contract is concluded. This publication serves as a safeguard mechanism that, if no challenge is raised, provides a degree of legal certainty for the subsequent contract award.
This mechanism was introduced to address the problem of illegal direct awards, which were previously difficult to challenge because affected companies often only learned of the contract after it had been concluded. The ex-ante notice creates transparency about the intended award and gives the market an opportunity to raise objections, thereby reducing the risk of the contract being declared ineffective after the fact.
Why It Matters for Bidders
For bidders, ex-ante transparency notices represent an important monitoring opportunity. When a contracting authority publishes such a notice, it signals that the authority believes a competitive procedure is unnecessary. If a bidder believes it could have fulfilled the contract requirements and that a competitive procedure should have been conducted, it has a limited window to challenge the intended direct award.
Companies should include ex-ante transparency notices in their routine monitoring of procurement portals and TED. Identifying these notices promptly is critical because the time window for raising objections is typically very short, often just 10 calendar days from the publication of the notice.
Legal Framework
The voluntary ex-ante transparency notice is governed by Section 135 (3) GWB in conjunction with Section 134 GWB. EU Directive 2014/24/EU Article 33 and the Remedies Directive 89/665/EEC Article 2d provide the European framework. The notice must be published on TED using the eForms standard for above-threshold procurement.