An amendment notice cannot replace a contract notice

On March 31, 2023, contracting authority published a public tender under the light regime regarding. In the contract notice it was stated:

"It is a minimum requirement that the Tenderer has relevant experience in the form of 3 comparable references within the last 3 years. A reference is considered comparable when it concerns the supply of substitute nurses for a hospital."

Based on an enquiry from a potential tenderer, the contracting authority changed the wording of the minimum requirement so that it also included experience with the delivery of substitute nurses to the healthcare system outside of the hospitals. The change was made and published in an amendment notice.

The amendment did not result in a change of the time limit for submission of offers.

After the award of the framework agreements a complaint was filed alleging that contracting authority had acted in breach of the principles of equal treatment and transparency, cf. article 18 (1) of Directive 2014/24/EU on public procurement, by altering the minimum requirement without initiating a new tender.

The Complaints Board upheld the complaint. In a statement on the ruling, the Complaints Board stated that a contracting authority is subject to the principles when determining the procedure of a procurement process under the light regime, cf. article 74 of Directive 2014/24/EU on public procurement.

The Complaints Board further emphasizes that a fundamental element must not be changed during a tender. By naming a minimum requirement regarding the technical and professional ability of the tenderers and then changing the wording using the amendment notice, the contracting authority had in principle made a change to a fundamental element. This resulted in a violation of the principle of equal treatment.

The Complaints Board found that the contracting authority had not met the burden of proof that the change of the minimum requirement was unlikely to affect potential tenderers' participation in the tender and that it had not distorted competition between tenderers. Objections from the contracting authority regarding the use of the amendment notice and the fact that the contracting authority in a new tender – no different than in the use of the amendment notice – legally could have set the same time limit for submission of offers, would not have led to a different result.

In practice, this situation has often been handled with the contracting authority publishing an amendment notice regarding the change and at the same time extending the time limit for the submission of applications or offers, so that the new time limit at the least corresponds with the length of the relevant minimum time limit. Another used practice and safer alternative has been a new tender, i.e. sub-mission of a cancellation notice and (on the same day) submission of a new contract notice with underlying tender material, which - except for the specific change made - in its entirety is identical to the original contract notice, appendices, etc.

The idea is that it would seem formalistic to require the contracting authority to compile an entirely new tender, when the change is published with a notice, and the time limits correspond with the requirements of the law. Everyone who sees the amendment notice would thus be treated in the same way as if a cancellation and new tender had taken place. This pragmatic approach, however, is not entirely in line with the principle of equal treatment and transparency.

One of the conditions for a contracting authority to make amendments in already published tender material is that any amendments do not constitute "amendments of fundamental elements". Conversely, a completely new tender must therefore be initiated if amendments of fundamental elements are made.

In the present case, it was reasonably explained from the complainant's side that the potential tenderers’ surveillance tools, which are used to sort between the many relevant tenders, most often only scan "Tenders Electronic Daily" for contract notices and not amendment notices, which is why the more pragmatic approach used in practice does not ensure the exact same knowledge (publicity) of the amended material as an actual new tender.

This premise was presumably accepted by the Complaints Board, which is why the Complaints Board's dismissal of the made amendment was based on a usual doctrine on amendments of minimum requirements and the contracting authority's heavy burden of proof, which could not be lifted in this case.

As stated, the Complaints Board explicitly determined that this usual doctrine could not be affected by the amendment notice or contracting authority's pleas regarding time limits and considerations (the time limit in an actual new tender would – as previously mentioned - not necessarily have been longer).

The result would therefore most likely not have been different if it had been a “normal” tender according to the general rules of Directive 2014/24/EU on public procurement, where there, unlike under the light regime, are specific minimum time limits for most types of procedures.

In our opinion, this is a principal statement from the Complaints Board, and whether you agree with the boar or not, it is always nice to have clarification regarding one of the questions that in practice is quite often occurring, even though with this decision we unfortunately are likely to see an increase of new tenders.

An article by Simon Haugaard, Thomas Thorup Larsen and Tina Johansen