Article 9 — Market consultation
In brief
Before launching an R&D procurement call for tenders, public buyers must carry out a market consultation to signal the forthcoming procurement and to learn about the market, including whether innovative solutions exist or could be developed. The consultation must be announced through a prior information notice published in the Official Journal of the European Union and then on the national procurement portal. Specific rules allow the notice and consultation to be scaled back or handled through direct invitations where security or public safety interests are at stake.
Key points
- A market consultation is mandatory before the call for tenders, and must be announced by a prior information notice carrying the relevant CPV codes, an ‘innovation’ marker and, where applicable, the words ‘Pre-Commercial Procurement’.
- Public buyers must consult the market widely and may promote the announcement through any widely available media, choosing formats such as online questionnaires, webinars or physical meetings.
- Economic operators from the countries referred to in Article 11(1) may not be excluded from the consultation, subject to a security-related derogation limited to operators originating in Member States.
- Equal access to information must be ensured: anything shared with one participant must be shared with all participants in the same consultation.
- Documents, questions and answers and, where available, an outcome summary or recording are normally published; participation does not prejudge later eligibility to tender.
What it means in practice
Contracting authorities running R&D procurement gain a structured early-engagement step and must plan for publication and transparency obligations. Innovative firms, start-ups and SMEs receive advance visibility of upcoming opportunities and a route to shape the scope, value and modalities before the tender opens, without that participation counting against them later. Where security or public safety is affected, engagement may instead take place through targeted invitations to operators that express interest, meet the qualification criteria and do not pose a security risk. The obligation does not apply where the procurement’s only subject is the R&D consultancy services covered by the listed CPV codes.
Official text — Article 9 (COM(2026) 567)
1. Prior to launching the R&D procurement call for tenders referred to in Article 23,
public buyers shall conduct a market consultation to inform economic operators of
the forthcoming R&D procurement call for tenders, and gain market knowledge,
including about the availability of, or potential of developing, innovative solutions,
and about their views on the proposed scope, value, and modalities of the
implementation of the R&D procurement.
2. Prior to starting the market consultation, public buyers shall a nnounce the market
consultation by means of a prior information notice. The notice shall:
(a) be published in the Official Journal of the European Union and, after that, be
published on the national public procurement portal of the Member State of the
public buyer;
(b) include references to the relevant CPV codes for research and development
services, indicate that the market consultation is conducted for a R&D
procurement and relates to innovation by marking the field ‘innovation’ in the
prior information notice and by including, where applicable the words ‘ Pre-
Commercial Procurement’ in the field ‘title of the procurement’.
(c) include the format chosen by the public buyer for conducting the market
consultation, such as online questionnaires, online webinars or physical
meetings, and any relevant links or contacts where further information about
the conduct of the R&D procurement can be obtained.
3. Public buyers shall consult the market widely. To this effect, after announcing the
market consultation by means of a prior information notice, public buyers may
publish and promote the announcement of the market consultations through any
widely available media.
4. By way of derogation from paragraph 2 and 3 of this Article, where necessary and
justified for ensuring the prote ction of the security or public safety interests of the
Union or one or several of its Member States withing the meaning of Article 28(2),
public buyers shall publish and promote to the media the prior information notice
omitting all sensitive information and requesting economic operators to express their
interest to participate in the market consultation. Sensitive information shall be sent
only to economic operators who have expressed interest, meet the qualification
criteria and do not pose a security risk within the meaning of Article 28(4), point (d).
5. By way of derogation from paragraphs 2, 3 and 9 of this Article, where the
publication and promotion in the media of a prior information notice and the
publication of documents that explain the backgro und and the logistical details for
organising the market consultation would be contrary to the security or public safety
interests of the Union or one or several of its Member States withing the meaning of
Article 28(2), the public buyer shall not announce the market consultation pursuant
to paragraph 2, 3 and 9 of this Article but shall send an invitation to participate in the
market consultation to potentially suitable economic operators identified through a
market research and share the market consultati on documents only with those who
express an interest, meet the qualification criteria and do not pose a security risk
within the meaning of Article 28(4), point (d).
6. Public buyers shall not exclude any economic operators having their origin in
countries referred to in Article 11(1), from participation in the market consultation.
By way of derogation from the first subparagraph of this paragraph, where necessary
and justified for protecting security and public safety interests of the Union or one or
several of its Member States within the meaning of Article 28(2), public buyers may
restrict market consultation only to economic operators that have their origin in
Member States.
7. Public buyers shall ensure equal access to information during the market
consultation. They shall share any information on the R&D procurement provided to
one economic operator participating in the market consultation with all other
economic operators participating in the same market consultation.
8. During the market consultat ion, public buyers may seek or accept information and
advice from the general public, independent experts, public authorities, market
participants or other relevant parties. The market consultation may take the form of
written or verbal exchanges, online questionnaires, webinar of physical meetings, site
visits or demonstrations, or other suitable objective formats. Information and advice
sought or accepted may be used in the planning and conduct of the R&D
procurement, respecting the principles of equal tr eatment, non -discrimination, fair
competition and transparency.
9. Unless contrary to the security or public safety interests of the Union or one or
several of its Member States withing the meaning of Article 28(2), public buyers
shall publish on their we bsite any documents related to the market consultation,
including any documents that explain the background and the logistical details for
organising the market consultation, questions posed by economic operators together
with the replies to those question s by the public buyer and where available a
summary on the outcome of the market consultation or written minutes, or a video or
audio recording of any market consultation meetings.
10. The participation of an economic operator in a market consultation shall not prejudge
its eligibility to participate in a subsequent call for tenders for the R&D procurement.
11. By way of derogation from paragraph 1, the obligation to conduct a market
consultation pursuant to this Article shall not apply to R&D procurement procedures
which have as their only subject the procurement of research and development
consultancy services as covered by CPV codes 73200000 -4,73210000-7 and
73220000-0.
Source: European Commission, proposal for a Regulation establishing the European Innovation Act, COM(2026) 567 final, 9 September 2026. Read the official proposal (PDF). Text may change during the legislative process.
Anthony Bochon’s analysis
What strikes me most in this provision is that market consultation ceases to be the optional courtesy it has long been under the general procurement directives and becomes a mandatory antechamber to any R&D call for tenders. In advising innovative firms on how to engage with public buyers, I have often seen early dialogue determine the whole shape of a procedure, so codifying a prior information notice in the Official Journal, wide promotion, and equal access to information is a sensible discipline that should reduce the risk of a specification quietly written around one incumbent.
My reading is that the real tension sits between openness and the layered security derogations tied to Article 28: paragraphs 4 and 5 allow buyers to strip out sensitive information or bypass publication entirely, and how narrowly that is policed will decide whether the security route stays exceptional or becomes a convenient default. I would also watch the equal-treatment obligation in paragraph 7 closely, because feeding consultation input into procurement design always carries a latent distortion-of-competition risk; through Parliament and Council I expect the transparency duties in paragraph 9 to be reinforced rather than diluted, and addressees should assume that whatever they share may end up published.