Q&As

In a competitive procedure with negotiation, can the procurement documentation and submitted tenders be amended during the process? Can the contracting authority negotiate with bidders once the final tenders are submitted?

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Published on LexisPSL on 25/03/2020

The following Public Law Q&A provides comprehensive and up to date legal information covering:

  • In a competitive procedure with negotiation, can the procurement documentation and submitted tenders be amended during the process? Can the contracting authority negotiate with bidders once the final tenders are submitted?
  • Is it permissible for the contracting authority to revise its invitation to tender or other procurement documentation during the procurement process or must they remain unchanged?
  • Can the bidders’ tender documents can be amended?
  • Can the authority negotiate with bidders once the final tenders are submitted?

We have assumed that:

‘This query relates to the competitive procedure with negotiation under regulation 29 of the Public Contracts Regulations 2015, SI 2015/102.’

Is it permissible for the contracting authority to revise its invitation to tender or other procurement documentation during the procurement process or must they remain unchanged?

The statutory formula and process for the competitive procedure with negotiation (negotiated procedure) expressly foresees a contracting authority making revisions to its invitation to tender or other procurement documentation. The Public Contracts Regulations 2015 (PCR 2015), SI 2015/102, reg 29(16)(b) directs the authority to ‘inform all tenderers whose tenders have not been eliminated…of any changes to the technical specifications or other procurement documents, other than those setting out the minimum requirements’.

While this indication is permissive of changes to the technical specification, changes should not cause the contract in question to fall outside the scope of contracts for which the negotiated procedure may be used and the conditions upon which it must be used. Thus revisions are permitted so long as:

  1. the subject matter of the procurement remains within the conditions for competitive procedure with negotiation set out in PCR 2015, SI 2015/102, reg 26(4)

  2. the conditions for qualitative selection requested by the contracting authority in its call for competition remain the same, such that they are no less precise to enable economic operators to identify the nature

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