Overview
This regulation allows contracting authorities to authorise, or require, tenderers to submit variant tenders provided that this is set out in the contract notice and, procurement documents should set out the minimum requirements to be met by variants; including any specific requirements for their presentation.
To the extent that the submission of variant tenders is authorised or required, contracting authorities must ensure that variant tenders are linked to the subject-matter of the contract and chosen award criteria can be applied to variants meeting minimum requirements; as well as to conforming tenders which are not variants.
Variant tenders may only be evaluated where they meet the contracting authority’s minimum requirements and must not be rejected on the sole ground that they would, where successful, lead to a public service or supply contract (rather than a public supply or service contract).
Objective at this commercial stage
When designing a procurement process, consideration should be given as to whether it would be appropriate to authorise or require bidders to submit variant tenders.
Key considerations at this commercial stage
Contracting authorities should:
- consider the appropriateness of authorising or requiring the submission of variant tenders, by reference to feedback received in response to market consultation and engagement, for example
- when setting minimum requirements for variant tenders, ensure that these are linked to the subject-matter of the contract and do not unfairly disadvantage bidders that choose to submit such tenders
- ensure that the design of the award criteria is appropriate to enable the contracting authority to apply these criteria fairly and proportionately to variant and non-variant tenders.
Legal framework
There is no direct equivalent section in the Procurement Act 2023.
Additional support and guidance
Make sure you:
- read the regulation
- seek legal and commercial advice in the context of specific procurements
