Talking to the market is now a matter of record, and that changes how you should do it
Preliminary market engagement is one of the few parts of the Procurement Act 2023 that is entirely optional and still catches people out. Nothing in the Act obliges a contracting authority to speak to suppliers before it tenders. But if you do speak to them, two things follow automatically: you must publish a preliminary market engagement notice or explain in the tender notice why you did not, and you must be able to show that nobody who took part was put at an unfair advantage. The engagement is voluntary. The consequences are not.
The form does not matter, the purpose does
A common misreading is that preliminary market engagement means a formal supplier day with a published agenda, and that informal conversations sit outside the regime. The guidance closes that door. What makes an activity preliminary market engagement is the purpose and the subject of the engagement, not its form. A corridor conversation about what a future requirement might look like is engagement. A round of one to one calls to understand pricing models is engagement.
That matters because the notice obligation and the unfair advantage duty attach to the activity, not to the label you put on it. Teams that treat early conversations as pre procurement scoping, outside the process, end up with an engagement they cannot describe, cannot evidence and cannot fairly reflect in the tender documents.
The safer instinct is to decide, before the first conversation, that this is engagement and to run it accordingly: purpose stated, invitation open, notes kept, outputs shared.
What most organisations get wrong
The first mistake is engaging only the incumbents and the two or three suppliers already known to the team. It is efficient and it is exactly what the unfair advantage duty exists to control. The guidance points the other way: hold sessions broadly, include small and medium sized enterprises and new entrants, and use digital formats so that suppliers who cannot travel are not excluded by logistics.
The second mistake is failing to share back. Information gathered during engagement that shapes the specification but is never disclosed to the wider market is the clearest way to create an advantage. Sharing relevant information with all suppliers, and reflecting engagement outcomes in the tender documents where appropriate, is listed as a preventative step for a reason.
The third mistake is leaving the paperwork to the end. The conflicts assessment has to be prepared before the tender notice is published, and it depends on material generated during engagement. Reconstructing who said what, three months later, from inboxes and calendar entries, is how authorities discover they cannot evidence the steps they say they took.
Exclusion is the sharp end
The consequence of getting this wrong is not a note in a lessons learned log. Where an authority considers that a supplier's participation in preliminary market engagement has put that supplier at an unfair advantage in relation to the award of the contract, and that advantage cannot be avoided, the supplier must be excluded from the procurement.
Read that from the supplier side and it becomes a commercial risk in its own right. A supplier that gets closer to the requirement than anyone else, and helps write the thing it wants to bid for, can engineer itself out of the competition. Good suppliers are already alert to this and will ask what the authority is publishing and sharing back.
The word that does the work is avoided. Most advantages can be neutralised by disclosure and by time: publish what was discussed, share the outputs, and allow an adequate period for receipt of tenders. Exclusion is the residual case, for advantage that no amount of disclosure can level out.
What to do instead
Treat the preliminary market engagement notice as the default rather than the exception. There is no set timeline for publishing it, so the practical constraint is proportionality: leave enough time for suppliers to take part given how complex the engagement is. Publishing early is cheap and it converts a private conversation into a public, defensible process.
Then run engagement as if the tender notice already existed. Same openness, same record keeping, same discipline about what gets shared. Below threshold contracts sit outside the obligations in sections 16 and 17, but nothing stops an authority applying the same approach there, and publishing a notice voluntarily, where the market would benefit from the warning.
The organisations that will find this easy are the ones whose early engagement already produces artefacts: an invitation, a participant list, a question log, a published summary. The ones that will struggle are those whose engagement lives entirely in individual relationships.
The takeaways
- Engagement is optional, but once you engage, the notice duty and the unfair advantage duty apply.
- Purpose and subject define preliminary market engagement, not the format or the label.
- Publish a preliminary market engagement notice, or be ready to explain the omission in the tender notice.
- Share information back to the whole market and allow adequate time for tenders, because that is how advantage gets neutralised.
- Where advantage cannot be avoided, exclusion of that supplier is mandatory, so plan mitigation before engagement begins.
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