How to talk to public buyers before the tender is published

You are allowed to talk to a public buyer before the tender is published, and the buyer is allowed to talk back. What is not allowed is an exchange that leaves you holding information the other bidders will never get, or a specification quietly shaped around your product.

By the time a contract notice appears the requirement is written and the budget is signed off. Whoever helped the buyer think about the problem six months earlier was present when the thinking happened. That is not cheating.

What gets published before a tender

Four kinds of document appear before the notice, each signalling a different distance from it.

Pipelines and forecasts come first. Section 93 of the Procurement Act 2023 requires a UK authority expecting to pay more than £100 million in the coming financial year to publish a pipeline notice within 56 days of that year starting, covering contracts over £2 million it will advertise in an 18 month period. Australian entities publish an annual procurement plan on AusTender by 1 July, and acquisition.gov lists US federal forecasts.

Prior information notices come next. Article 48 of Directive 2014/24/EU lets an authority announce planned procurements up to 12 months ahead. They appear on TED under the planning form type and on national portals such as Doffin, where the Norwegian version is a veiledende kunngjøring. The UK equivalent is the optional planned procurement notice on Find a Tender.

Market engagement notices are third. Where a UK authority carries out preliminary market engagement, section 17 requires a notice of it before the tender notice, or an explanation of its absence.

Requests for information and sources sought notices are fourth. On SAM.gov these are distinct notice types: sources sought is market research, a presolicitation notice is a commitment that a solicitation is coming. Read the notice type field first.

A prior information notice tells you the scope is close to fixed. Under Article 27(2), a PIN sent 35 days to 12 months before the contract notice, carrying everything a contract notice would, lets the buyer cut the minimum tender period to 15 days. In the UK a planned procurement notice published 40 days to 12 months ahead allows a 10 day tendering period under section 54.

Where each engagement opportunity sits relative to the notice

What a buyer is allowed to do in a market consultation

Article 40 of Directive 2014/24/EU is short and permissive. Authorities may conduct market consultations "with a view to preparing the procurement and informing economic operators of their procurement plans and requirements", and may accept advice from market participants, provided it does not distort competition. France codified the same idea as sourcing in article R2111-1 of the Code de la commande publique.

The UK listed the permitted purposes instead. Section 16(1) of the Procurement Act 2023 covers developing the requirement, designing the procedure and award criteria, preparing tender documents, identifying capable suppliers, identifying likely contractual terms, and building capacity among suppliers. That last one is what small firms overlook: a buyer may help you become able to bid.

US practice sits under FAR 15.201, which encourages exchanges from the earliest identification of a requirement. An RFI may be used where the government does not presently intend to award a contract but wants capability or price information for planning, and RFI responses are not offers. Market research itself now runs under the Revolutionary FAR Overhaul deviations rather than the original FAR Part 10.

What the buyer has to do afterwards

Article 41 says that where a candidate has advised the authority, or has otherwise been involved in preparing the procurement, the authority must take appropriate measures so competition is not distorted, including passing the relevant information to the other candidates and setting adequate time limits. Exclusion is a last resort, and you must first be given the opportunity to prove your involvement cannot distort competition. The Court of Justice held the same in Fabricom (Joined Cases C-21/03 and C-34/03, 3 March 2005): automatic exclusion for prior involvement was disproportionate.

The UK version has a sharper edge. Section 16(3) obliges the authority to take steps so participating suppliers are not put at an unfair advantage, and section 16(5) then requires it to treat a supplier as excluded where that advantage cannot be avoided. In the US it is a disclosure duty: under FAR 15.201, information necessary for preparing proposals, once given to one or more potential offerors, must be made public no later than the next general release.

What you can legitimately do

Respond to every consultation and RFI that touches your market, including the ones you will not bid. In the US this is how a set-aside happens: FAR 19.502-2 requires an acquisition above the simplified acquisition threshold to be set aside where the contracting officer reasonably expects offers from at least two responsible small business concerns at fair market prices. If two of you stay silent, it goes out unrestricted.

Correct unrealistic assumptions while the window is open. Buyers routinely draft timescales no supplier can meet. Say it afterwards and it becomes a clarification question every competitor reads.

Demonstrate capability generically. Explain what a system of this type costs to run and what goes wrong in year two, describing the category rather than your product code.

Ask the buyer to describe the outcome instead of the product. For someone about to specify the wrong thing, the useful intervention is making them write down what success looks like.

What gets you disqualified

Writing the specification. FAR 9.505-2 covers contractors who prepare specifications and the biased ground rules that follow; in Europe it triggers the Article 41 assessment, in the UK exclusion under section 16(5).

Receiving information the market does not have. Budget figures, the evaluation model, the incumbent's pricing, the date the notice will drop. If a buyer offers any of these privately, ask them to publish it.

Getting your differentiators into the mandatory criteria. A certification only you hold, or a parameter matching your data sheet to two decimals, reads as steering and invites a challenge.

Contacting the evaluation team after publication. FAR 15.201 makes the contracting officer the focal point once a solicitation is released, and the equivalent elsewhere is the portal clarification process.

Buyers neutralise advantage predictably, so expect all of it: the consultation questions and responses published, any document shown to participants published, the tender period extended, anything traceable to one supplier rewritten. That is a defence being built, not a judgement on you.

Where to find buyers' published pipelines

Pipeline notices only bite on the largest UK authorities, so for a district council read the committee papers. A Canadian ACAN is the odd one out: it declares an intention to award without competition, so treat it like any notice of intent, as a deadline. Filter planning notices by CPV code as you would contract notices, because alert setups that drop the planning forms are a standing source of missed work.

What to say in a first approach

Keep it short, name the document you are responding to, and ask for something that costs the buyer nothing to give.

Subject: Market engagement, [notice reference] [contract title]

Dear [name],

We saw your [pipeline notice / prior information notice / sources
sought notice] reference [number], published [date], for [title].

We deliver [category] for [two comparable buyer types] in
[countries]. We understand you will publish whatever we send.

Three things would help us decide whether to prepare:
- the intended procedure, and when you expect to publish
- whether the requirement will be one lot or divided
- whether you plan market engagement before publication

If useful, we can send a two-page note on how comparable buyers
structure this requirement and what it costs in year two.

[name, role, phone]

The offer at the end matters more than the questions, and it stays legitimate because you would give the same note to anyone who asked.

Questions to ask at a market engagement event

Ask these out loud, in the room, so the answers reach everyone and nothing you learn is private.

• What problem are you solving, without naming a product?
• What is the current arrangement, and when does it end?
• Is the budget allocated, and is it capital or revenue?
• Which procedure are you minded to use, and why that one?
• One lot or several, and can a specialist bid one lot?
• Which requirements are mandatory and immovable?
• What went wrong with the last contract for this?
• Who has to be satisfied internally before you publish?
• What would make you delay or cancel this?
• Which of the things said today will you publish, and when?

The last one is the question that protects you. Write down the answer.

Keep an engagement log

One row per contact, kept for the life of the procurement plus the limitation period for a challenge in your jurisdiction. If a losing bidder alleges you were favoured, the buyer will be asked what passed between you, and a dated log with the attachments still on it settles it.

Record the channel honestly. A corridor conversation at a conference counts, and it is the one that looks bad when it turns out to be missing.

When contracts expire, engagement gets a date

Engagement without a date is just networking. The date comes from the expiring contract, which is why the method for mining award notices for future re-tenders and this article are one technique split in two. Add the term to the award date and you have the month the buyer's planning starts, typically six to twelve months ahead of the notice.

Work backwards from it. Twelve months out, ask to be on the list for market engagement. Nine months out, look for the pipeline entry or prior information notice. Six months out, if nothing has appeared, send the first approach message. What you learn from reading the award notice feeds the bid or no-bid decision.

Common questions

Can I talk to a public sector buyer before the tender is published?

Yes. Article 40 of Directive 2014/24/EU expressly permits market consultations before a procedure is launched, and section 16 of the UK Procurement Act 2023 lists the purposes for which UK authorities may engage suppliers. The constraint is on what passes between you.

Does responding to a market consultation disqualify me from bidding?

No, and automatic exclusion for prior involvement is unlawful in the EU. Article 41 of Directive 2014/24/EU requires the buyer to neutralise any advantage first, by sharing the relevant information with other bidders, and to let you prove your involvement did not distort competition.

What is the difference between a sources sought notice and a presolicitation notice?

A sources sought notice is market research: the agency is testing whether capable suppliers exist and, in the US, whether a small business set-aside is possible. A presolicitation notice signals a coming solicitation, and FAR 5.203 generally requires it at least 15 days beforehand.

Where do UK buyers publish their procurement pipelines?

On Find a Tender. Section 93 of the Procurement Act 2023 requires an authority expecting to pay more than £100 million in the coming financial year to publish a pipeline notice within 56 days of that year starting, covering contracts above £2 million it will advertise in the next 18 months.