Q&As

Under what circumstances could a contracting authority negotiate or amend the terms of a contract tendered using the restricted procedure? What are the potential consequences of doing so?

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Produced in partnership with Peter Ware of Browne Jacobson
Published on LexisPSL on 23/02/2018

The following Construction Q&A produced in partnership with Peter Ware of Browne Jacobson provides comprehensive and up to date legal information covering:

  • Under what circumstances could a contracting authority negotiate or amend the terms of a contract tendered using the restricted procedure? What are the potential consequences of doing so?
  • What happens if during the tender period one or more bidders asks for the contract terms to change?
  • What should the contracting authority do if the preferred bidder wishes to negotiate changes to the contract terms before the contract commences?
  • What if a restricted procedure tender does not produce any tenders that the contracting authority wants to accept?

Under what circumstances could a contracting authority negotiate or amend the terms of a contract tendered using the restricted procedure? What are the potential consequences of doing so?

In answering this Q&A we have considered whether, prior to concluding a public contract tendered under the restricted procedure, the contract terms advertised can be negotiated with the preferred bidder and subsequently amended—and what might happen if this was to take place. We have also limited our research to procurement under the Public Contracts Regulations 2015 (PCR 2015), SI 2015/102.

What happens if during the tender period one or more bidders asks for the contract terms to change?

It is not uncommon, during the tender period, for a bidder to ask for a term in the draft contract to be amended. Where this happens the contracting authority must give careful consideration to whether the proposed amendment can be accepted or not.

Reasons why an amendment might be required include a genuine mistake on the part of the contracting authority that needs correction or an understanding from the contracting authority that the contract terms as originally drafted are not acceptable to the market.

However, before any amendment is made the contracting authority should consider the impact. An amendment to the draft contract terms could be challenged where the change:

  1. results in unequal treatment of bidders and one bidder is able to submit

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