Free pilot before a public tender: what the rules do with it
In the EU and the UK, what your pre-tender pilot produced can go to rival bidders, and exclusion for the head start comes only if nothing less removes it. In US federal buying, preparing complete specifications for nondevelopmental items or helping prepare a work statement can restrict what you may supply, subject to exceptions.
A public buyer has asked your team for a free pilot or a demonstration before it runs the tender. Where the pilot is part of preparing a covered procurement, the applicable rules address any unfair advantage it gives you. The EU directive and the UK government's guidance name the same first remedy: give the other bidders the relevant information and enough time to use it. In US federal buying, the restriction turns on the contractor's role in drafting. For the specifications rule, furnishing data about your own product at the Government's request is one of the named exceptions.
A Proof of Value can help an economic buyer assess a business case. Before a public tender, procurement rules written for the buyer decide what happens to the pilot's results and to your place in the competition.
What the buyer may do with what the pilot produced
Under Article 41 of Directive 2014/24/EU, when a supplier "has otherwise been involved in the preparation of the procurement procedure", the buyer must take appropriate measures, and they "shall include the communication to the other candidates and tenderers of relevant information exchanged in the context of or resulting from the involvement", together with adequate time limits for tenders.
In the UK, section 16 of the Procurement Act 2023 says a buyer carrying out preliminary market engagement "must take steps to ensure" that suppliers taking part "are not put at an unfair advantage". The Cabinet Office guidance on preliminary market engagement names the same two measures as the EU text, sharing relevant information and fixing adequate time limits, and calls it best practice for the information or outcomes of the engagement "to be included in the tender notice or tender documentation".
The UK government's 2021 guidance note on testing and piloting services, written under the earlier Public Contracts Regulations 2015, says that where a pilot and the roll-out are tendered separately, the pilot supplier may not be able to take part in the roll-out, and it names the same two remedies.
So results on the buyer's own data, answers about integration and any draft requirement may reach the other bidders through the tender documents, with time for them to use it.
When the pilot can cost you the tender
In the EU, Article 41 allows exclusion only "where there are no other means to ensure compliance with the duty to observe the principle of equal treatment", and only after the supplier has been "given the opportunity to prove" that its involvement "is not capable of distorting competition".
In the UK, section 16(5) requires exclusion when the buyer considers that taking part put the supplier at an unfair advantage and "the advantage cannot be avoided". A separate, discretionary ground in Schedule 7, paragraph 13 applies where a supplier has acted improperly in a procurement and so put itself at an unfair advantage; one of its examples is "accessing confidential information". On that ground, section 58 gives the supplier a "reasonable opportunity" to make representations and provide evidence first.
In US federal buying, FAR 9.505-2 turns on the role the contractor played. A contractor that "prepares and furnishes complete specifications covering nondevelopmental items" for a competitive acquisition "shall not be allowed to furnish these items" for a reasonable period, at least the initial production contract. A contractor that prepares or helps prepare a work statement for a system or services, or provides material leading directly to one, may not supply them unless one of three exceptions applies.
| Rules the buyer works under | What the buyer does first | When exclusion follows | Before exclusion, or the exceptions |
|---|---|---|---|
| EU, Directive 2014/24/EU, Articles 41 and 57(4)(f) | What the buyer does first Shares the relevant information from your involvement with the other candidates and sets adequate time limits | When exclusion follows Only where there are no other means to ensure equal treatment; as an exclusion ground, when the distortion cannot be remedied by other, less intrusive measures | Before exclusion, or the exceptions You are given the opportunity to prove that your involvement is not capable of distorting competition |
| UK, Procurement Act 2023, section 16 | What the buyer does first Takes steps so that participants are not put at an unfair advantage; the guidance names sharing information and adequate time limits | When exclusion follows When your participation has put you at an unfair advantage and the advantage cannot be avoided: the buyer must then exclude you from the competitive procedure | Before exclusion, or the exceptions Section 16 names no hearing step; on the separate ground of acting improperly (Schedule 7, paragraph 13), the buyer must first give you a reasonable opportunity to make representations and provide evidence (section 58) |
| US federal, FAR 9.505-2 | What the buyer does first Contracting officers avoid, neutralize or mitigate significant potential conflicts before award (FAR 9.504) | When exclusion follows You prepared complete specifications for nondevelopmental items, or prepared or helped prepare a work statement, used in the competition | Before exclusion, or the exceptions Specifications or data about your own product furnished at the Government's request; supervised help as an industry representative; for a work statement, being the sole source, having done the development and design work, or more than one contractor preparing it |
Worked example, invented: a council's six-week pilot
An English council asks a vendor of case-management software for a free six-week pilot before a tender under the Procurement Act 2023. The pilot produces results on a sample of the council's anonymised cases, the vendor's answers on how the product connects to the council's existing systems, and, at the council's request, the vendor's draft of the requirements.
The results and the integration answers are information exchanged in preliminary market engagement. The guidance calls it best practice to put such information or outcomes into the tender documents, so the other bidders may see them and get time to use them.
If the council concludes that the draft gave the vendor an unfair advantage that cannot be avoided, section 16(5) requires it to exclude the vendor. In a US federal procurement, whether such a draft is a work statement or leads directly, predictably and without delay to one would matter under FAR 9.505-2(b); the provision also names exceptions.
Find the buyer's notice
In the UK, a buyer that carries out preliminary market engagement must publish a notice before the tender notice, or give its reasons in the tender notice (section 17; private utilities are exempt). On Find a Tender these are UK2 notices, and demonstrations appear in them: North Yorkshire Council's housing systems notice of 17 October 2025 announced "Follow-up discovery sessions with suppliers to demonstrate their proposed solutions", and Manchester City Council's e-tendering notice let suppliers indicate interest in giving a demonstration.
The pilot and the proof
These rules concern covered public procurement; their application depends on the buyer and the procurement. Nothing here is legal advice. For what the pilot must prove and what its agreement covers, see what a Proof of Value needs to prove and what a pilot agreement leaves out; after a lost tender, see the tender debrief.
Sources
- Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement. EUR-Lex, European Union, 26 February 2014.
- Procurement Act 2023, section 16: Preliminary market engagement. legislation.gov.uk, 2023.
- Procurement Act 2023, section 17: Preliminary market engagement notices. legislation.gov.uk, 2023.
- Procurement Act 2023, section 58: Considering whether a supplier is excluded or excludable. legislation.gov.uk, 2023.
- Procurement Act 2023, Schedule 7: Discretionary exclusion grounds. legislation.gov.uk, 2023.
- Guidance: Preliminary Market Engagement. Cabinet Office (GOV.UK), 13 July 2026.
- Testing and piloting services guidance note. UK government (GOV.UK), May 2021.
- FAR 9.505-2 Preparing specifications or work statements. Acquisition.gov, 13 March 2026.
- FAR 9.504 Contracting officer responsibilities. Acquisition.gov, 13 March 2026.
- Housing Systems Preliminary Market Engagement (notice 2025/S 000-066127). Find a Tender, The North Yorkshire Council, 17 October 2025.
- E-Tendering Portal (notice 2025/S 000-039452). Find a Tender, Manchester City Council, 14 July 2025.
Facts last checked on 6 November 2026.