Public procurement: the authorization given to candidates to submit variants different from those initially authorized during the procedure does not constitute a substantial change
Rule n ° 1:
Where the contracting authority gives authorization to candidates during the procedure and before the submission of tenders to submit variants which are different from those initially authorized, this is not a substantial change to the initial terms of the contract. Therefore, it is not necessary to publish a corrigendum with a new deadline for the receipt of tenders. On this point the judgment of the Council of State is surprising since the possibility of presenting variants different from those initially allowed affects the presentation of candidates' offers, the drafting of the technical memorandum and the overall strategy of the candidate for present its basic offer and its variants. It seems to me that, in such a case, a notice of amendment with an extension of the deadline for the submission of tenders should have been required (see to this effect CE 16 November 2005 'City of Paris', application No 278.646)
Rule n ° 2:
When the contracting authority decides to make use of sub-criteria, it must inform the candidates of the weighting or prioritization of these sub-criteria if they are likely to influence the candidates' tenders. This rule was clearly laid down by the judgment of the "Saint-Pal de Mons" Council of State of 18 June 2010 (application No. 337.377). In its judgment, the Council of State recalls that the lack of communication to the candidates of the weighting modification of the technical sub-criteria, carried out by the contracting authority in the bid analysis report and intended to make a comparison between the basic offers with glass roofs and variants that do not include them, may have an influence on the submission of tenders by the candidates and therefore violated the above provisions of Article 53 of the Code des Marches Publics.