The potential problem which could arise in either scenario is that the incumbent could draft/amend the specification such that it was biased towards their solution and/or creates a scenario where the incumbent’s solution is the only viable offering for the authority. Therefore ideally, the authority would draft the specification itself or instruct an independent third party to undertake this task, particularly if it appears very likely that the incumbent will participate in the re-procurement exercise.
If an authority does not believe it has the expertise to draft the specification itself, or there are reasons why it would not be possible to instruct an independent third party, it may find itself requesting assistance from the incumbent. If this scenario occurs, the authority will need to remain cognisant of the potential issues which could arise as discussed in the paragraph above. In terms of mitigating against this occurrence, pre-market engagement could be helpful as it should draw out instances where an authority’s specification/requirements could be precluding all (or a large section) of the supplier market. Therefore, if an incumbent has drafted, or assistance with the drafting of, the specification, it might be helpful to share a copy of the intended specification as part of the pre-market engagement exercise, prior to producing a final copy/commencing the formal procurement process.