The question of when a contracting authority can, or in some cases, must, seek clarification from a tenderer as to some aspect of its tender, often arises in practice. While there are many cases on this area and various principles can be distilled from them, the application of the law to practical situations can be difficult and require careful judgment.
On the one hand, it may give rise to a breach of equality for a contracting authority to allow a tenderer to, in some way, improve its tender or avoid the consequences of not having included everything at the outset. On the other hand, where the deficiency is obvious, can easily be corrected and does not raise a risk of unequal treatment vis-à-vis other tenderers, it may be disproportionate not to allow a clarification. These issues have been addressed in several EU authorities as well as by national courts and an important recent treatment of the issues was given by the English Court of Appeal in Optima Health v Secretary of State for Work and Pensions [2025] EWCA Civ 127.
The issues concerning clarifications are closely linked (and in some ways the same) to the permissibility of accepting a late tender. Issues concerning tenders that have been submitted after the tender submission deadline have arisen not infrequently in the case law. For example, problems encountered in uploading documents to the contracting authority’s tender portal are typical of the kinds of issues that can arise.
A tenderer who has been excluded because of a late submission may challenge that decision, or another tenderer may challenge the inclusion of the tender that was submitted out of time. The cases illustrate that the issue is not black and white and that the question whether a late tender should be accepted can engage principles of proportionality, good administration, equal treatment and transparency, presenting contracting authorities with sometimes difficult decisions when exercising their discretion.
Below, more than 20 of the leading cases from the EU and UK are reviewed and detailed analysis of the case law and the principles that emerge from it is set out with a view to providing practical guidance on these thorny questions. Some of the questions that arise include:
- Can a contracting authority seek clarification if a tenderer has failed to provide a particular answer?
- Can a contracting authority lawfully exclude a tenderer for minor errors?
- What is the relevance of the specific terms of the Invitation to Tender as regards clarifications?
- What if the tender documents contain a mandatory exclusion clause?
- If seeking clarification, how can a contracting authority ensure it is not favouring that bidder?
- If clarifications are sought, how broad must the inquiry be?
- In what circumstances might a late tender be lawfully admitted?
- What if the delay is caused by technical issues in uploading documents to the tender portal?