Public Procurement gives rise to a significant number of repeat contracts, particularly in the area of services, which are required to be provided on an ongoing basis. When such contracts come up for tender, issues can arise as to whether the incumbent has some sort of unfair advantage, based, for example on its knowledge of the contract requirements or the fact that it will not require the same start-up costs or lead-in periods as other providers.
What must contracting authorities do in such situations? To what extent are they required to level the playing field?
The case law suggests that action may be required in some situations but the guidance provided in the jurisprudence is not very clear. Contracting authorities also must ensure that attempts to level the playing field do not unduly discriminate against incumbents.
Somewhat similar issues can arise in relation to the use of preliminary market consultations, where a risk may arise that the prior involvement of an operator affords it some sort of advantage in the tender process.
The review and analysis below considers a number of the lading cases dealing with incumbency advantage, and the recent judgment of the English High Court in The New Lottery Company Ltd v Gambling Commission [2026] EWHC 891 (TCC), where one of the claims was that the incumbent had obtained an unfair advantage by virtue of its early access to information.