Non-Compliant Tender

A Non-Compliant Tender is one that fails to meet the mandatory conditions set by the contracting authority, rendering it ineligible for evaluation against the award criteria. Compliance checking is a gateway stage that precedes scoring: only tenders that pass compliance review enter the award evaluation.

What is a Non-Compliant Tender?

EU public procurement directives do not use the phrase "non-compliant tender" as a defined legal term, but the concept is implicit throughout Directives 2014/24/EU and 2014/25/EU. A tender that departs materially from the requirements set out in the procurement documents cannot be compared fairly with tenders that meet those requirements, and any award based on such a comparison would undermine the equal treatment principle of Article 18.

Common grounds for finding a tender non-compliant include:

Material technical deviation. The bid proposes a product, service, or solution that does not meet the mandatory technical specification. A "mandatory" requirement is one the contracting authority has explicitly designated as such, typically with language such as "must," "shall," or "is required." Requirements framed as desirable or preferred are not mandatory and cannot form grounds for exclusion on their own.

Missing mandatory information or documents. Failure to submit a required document (a completed pricing schedule, a signed declaration, a required certificate) within the submission deadline. Where the authority has an obligation to allow suppliers to remedy minor omissions (see below), this may not immediately result in exclusion.

Conditional or qualified acceptance of contract terms. A bidder who qualifies or conditions their acceptance of the contract terms (for example, by crossing out liability provisions or adding conditions that the authority has not proposed) may be found non-compliant, depending on the materiality of the qualification.

Failure to comply with formal submission requirements. Submission through the wrong portal, submission after the deadline, submission in the wrong format where format was a mandatory requirement.

Article 56(3) of Directive 2014/24/EU permits contracting authorities to request that bidders complete, clarify, or supplement information within an appropriate time limit where the information submitted is incomplete or erroneous, provided this does not result in substantive modification of the tender. This "self-cleaning" or clarification mechanism prevents automatic exclusion for minor administrative errors but does not allow fundamental technical or pricing deficiencies to be remedied after submission.

Why Non-Compliant Tender rules matter for bidders

Non-compliance means your bid is excluded from scoring regardless of how strong your technical or commercial proposal is. A brilliant quality submission that is attached to a non-compliant pricing schedule or that proposes an alternative to a mandatory technical requirement will never be evaluated against the award criteria.

Prevention is the only effective strategy. Before submission, systematically review every mandatory requirement in the specification and confirm that your tender explicitly addresses it. Use a compliance checklist to map each mandatory requirement to the relevant section of your submission. Do not assume that a deviation will be treated as minor or that the authority will invite you to correct it.

Where a submission has been found non-compliant, the authority should provide the reason in the evaluation report and during any debrief. Understanding precisely which requirement was not met enables you to correct the issue in future procurements.

Example

A German federal authority procures translation services. The specification requires that all bidders hold ISO 17100 certification for translation service providers. Certification must be in place at the time of submission and evidenced by a copy of the current certificate submitted with the bid. One bidder holds ISO 17100 but fails to include the certificate with its submission. The authority issues a clarification request. Another bidder does not hold ISO 17100 and proposes an equivalent internal quality standard. The first bidder's omission is remedied via clarification. The second bidder's submission is found non-compliant because it does not meet the mandatory certification requirement, not an administrative omission.

Frequently Asked Questions

Can the authority accept a non-compliant tender and adjust the price?

No. Accepting a non-compliant tender and adjusting its price or specification to make it compliant would give that bidder an advantage over competitors who submitted compliant tenders, breaching the equal treatment principle. The only options are exclusion or, for minor formal omissions, a clarification request that does not involve substantive modification.

Is a tender that takes exception to optional terms non-compliant?

Not necessarily. Mandatory terms (those designated as such in the documents) cannot be qualified without the risk of non-compliance. Optional terms or terms presented for negotiation can typically be commented on or qualified without triggering exclusion. Read the contract documents carefully to understand which terms are genuinely mandatory.

Can we request feedback on why our tender was found non-compliant?

Yes. Under Article 55 of Directive 2014/24/EU, a bidder notified that its tender has been rejected (including on non-compliance grounds) may request the reasons for rejection. You are entitled to understand which specific requirement your submission failed to meet.