Procurement Act 2023

16 Preliminary market engagement

(1) Before publishing a tender notice in respect of a public contract, a contracting authority may engage with suppliers and other persons for the purpose of—

(a) developing the authority’s requirements and approach to the procurement;

(b) designing a procedure, conditions of participation or award criteria;

(c) preparing the tender notice and associated tender documents;

(d) identifying suppliers that may be able to supply the goods, services or works required;

(e) identifying likely contractual terms;

(f) building capacity among suppliers in relation to the contract being awarded.

(2) Engagement under subsection (1) is called “preliminary market engagement”.

(3) In carrying out preliminary market engagement, a contracting authority must take steps to ensure that—

(a) suppliers participating in the preliminary market engagement are not put at an unfair advantage, and

(b) competition in relation to the award of the public contract is not otherwise distorted.

(4) Subsection (5) applies if a contracting authority considers that—

(a) a supplier’s participation in preliminary market engagement has put the supplier at an unfair advantage in relation to the award of a public contract, and

(b) the advantage cannot be avoided.

(5) The contracting authority must in relation to the award—

(a) treat the supplier as an excluded supplier for the purpose of—

(i) assessing tenders under section 19 (competitive award), or

(ii) awarding a contract under section 41 or 43 (direct award), and

(b) exclude the supplier from participating in, or progressing as part of, any competitive tendering procedure.