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Tendering and Awarding the Contract

66.4. Assessing Potential Changes to the Contract and RFP

As a result of questions asked by bidders through the clarification process, it may become apparent that the procuring authority needs to materially change aspects of the contract, tender requirements, or criteria.

Conducting a proper appraisal and structuring/drafting process, through meaningful assessment and preparation, is the best route to avoid this risk.

However, if the procuring authority faces a situation in which prospective bidders request changes in order to make the project commercially feasible, the authority will have to decide whether such changes are really needed to avoid receiving no bids, or whether that risk is worth taking.

If requests for change are considered reasonable and the change is affordable for the procuring authority, that change will usually require an extension to the bidding period (unless the change occurs early in the bidding period). It is good practice to provide such an extension. However, it may be necessary (depending on the legal framework of the respective jurisdiction) to cancel the process and re-issue the tender. This depends on an assessment (in legal terms) of whether the clarification or the change is substantial.

Another option, if allowed under the relevant framework, is to release the RFP and provide bidders with an opportunity to comment, then re-issue the RFP and require bidders to accept the reissued version before releasing the data room and draft transaction documents. Formal acceptance of the RFP can protect the procuring authority against subsequent objections from losing bidders. This approach can be beneficial if the project is novel or complex, and the procuring authority sees value in obtaining very specific feedback on the project structure. In this process, bidders are likely to provide more carefully considered and detailed feedback than in an earlier market sounding process.

Similar issues arise if the procuring authority identifies that additional data that was not originally in the data room should be provided to bidders. The procuring authority must manage the risks associated with late release of such information. An extension of the bidding period may be appropriate to allow all bidders to fully consider the additional information and adjust their bids accordingly.

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