Procurement: What – How? | Transparency in Tender Amendments
Amending a contract during a tender procedure often leads to headaches. What exactly can you change – and how should you go about it? In a recent and highly relevant ruling, the preliminary relief judge in Rotterdam addressed the key question: to whom must a change be disclosed?
Amendment without transparency
The case concerned a tender for temporary accommodation facilities on water. The original tender documents specified a maximum width of fifteen metres. During the procedure, this requirement was expanded to thirty metres. It is undisputed that this allowed more market participants to qualify for the contract.
However, the municipality only notified those entrepreneurs who had added the tender to their "My tenders" tab in TenderNed or were actively following the tender. Other potential bidders were not informed.
Two entrepreneurs initiated summary proceedings. One of them had downloaded the original tender documents but dropped out due to the initial width requirement. She did meet the revised requirement but was unaware of the change. She only found out after the contract had been provisionally awarded.
Lack of transparency is unlawful
The judge ruled that the municipality acted unlawfully by failing to disclose the amended width requirement in a manner that ensured all potential interested parties were informed. The change significantly expanded the group of potential bidders, making it a clearly material amendment.
As a result, the court ordered the municipality to halt the tender and initiate a new procedure. The fact that bidders were now aware of the winning price was deemed irrelevant.
Information notice, rectification or re-tendering?
This ruling underlines the importance for contracting authorities to carefully assess whether any change to the requirements during a tender should be publicly disclosed. Amending criteria that broaden the group of potential bidders – typically by relaxing or easing requirements – cannot simply be communicated via an information notice (nota van inlichtingen). That is considered insufficiently transparent. In fact, such changes may necessitate launching a new tender entirely, meaning a rectification would no longer suffice. This applies not only to those currently following the tender.
A brief guide to the available instruments:
- Information notice: only suitable for clarifications and explanations.
- Rectification: for significant but non-material changes, provided that deadlines are appropriately extended.
- Re-tendering: required for all other (material) amendments.
Ultimately, the key question is whether the change is relevant for all potential interested parties – including those who decided not to participate based on the original tender documents. If so, the amendment must be transparent and clearly communicated to all market participants, not just those already engaged in the process used.
Blog Series 'Procurement: What – How?'
This blog is part of the series ‘Procurement: What – How?’, in which Joris Bax, attorney at Brackmann, shares his insights and reflections on current topics in procurement and construction law.
Procurement: What – How? | Standstill period in tenders applies only to bidders
Who must submit a European Single Procurement Document (ESPD)? At a minimum, the tenderer themselves. This seems obvious: the contracting authority needs to verify whether the tenderer meets the exclusion grounds and suitability criteria. Moreover, the ESPD contains essential information about the party that will become the contractor if the contract is awarded.