Article
Reservations and deviations in your bid: when can they lead to rejection?
A small reservation can be enough to get your bid rejected. We explain the difference between material and insignificant deviations, and what to do instead.
Many suppliers add a small reservation to their bid just to be on the safe side. A slightly longer delivery time, 30 days to pay instead of 14, or a sentence saying they ‘assume’ something. It feels cautious and sensible. Yet it often seems to be the other way round: reservations are a recurring theme in the Norwegian cases on rejected bids. Using the Norwegian rules as our example, we look at what the regulations actually say, where the line is drawn, and what you can do instead.
What a deviation is, and why a reservation counts as one
Put simply, a deviation is when your bid differs on one or more points from what the contracting authority asked for in the tender documents (in Norway, the konkurransegrunnlag). You might be offering a different solution from the one described in the specification. But you might also be making a reservation against the contract terms, for example on payment, liability or delivery time.
DFØ (the Norwegian Agency for Public and Financial Management, which provides guidance on the procurement rules) describes it like this: the term deviation covers both solutions that do not match the specification and reservations against the contract terms. In both cases the consequence is the same. If the contracting authority accepts the bid, it cannot demand delivery as set out in the procurement documents.
So a reservation is not a polite remark. It is a deviation, and deviations are regulated.
What the rules say: must reject and may reject
The Norwegian public procurement regulation (anskaffelsesforskriften) distinguishes between two types of rejection based on the content of the bid. The rules are found in § 24-8 of the Norwegian regulation for procurements above the EEA thresholds, and in § 9-6 for procurements below them (which largely refers to the same grounds).
The contracting authority must reject a bid that ‘cannot be considered binding’, or that ‘contains material deviations from the procurement documents’. Here the contracting authority has no choice.
The contracting authority may reject a bid that ‘contains deviations from the procurement documents or ambiguities that cannot be considered insignificant’. Here it is up to the contracting authority’s discretion.
This means that only the truly insignificant deviations are ones you can count on getting away with. Anything above that line at least gives the contracting authority a right to reject. And DFØ writes that the bar for what counts as insignificant must be regarded as low, because the contracting authority itself should be able to decide what is bought and on what terms.
Where is the line for ‘material’?
The regulation does not define what a material deviation is. Its meaning has been developed through case law and decisions from KOFA (the Norwegian Complaints Board for Public Procurement). As we read DFØ’s guidance, these are the factors that recur in the assessment:
- What kind of requirement the deviation relates to, and how important it is to the contracting authority
- How large the deviation is
- Whether the deviation could distort competition between suppliers
- Whether the deviation shifts risk in the contractual relationship
- Whether the deviation creates doubt about how the bid should be compared with the others
- Whether the deviation can be priced
Two things are worth noting. First, several small deviations can together become material, even if none of them is on its own. Second, if the deviation makes it unclear how your bid should be ranked against the others (known in Norway as doubt about the relative assessment), DFØ’s guidance says it is always regarded as material. The contracting authority is then obliged to reject.
An example from practice: in a competition for winter road maintenance, a supplier made a reservation against the requirements for a front-mounted plough and a disc spreader, because other equipment was better suited to the route in question. But the reservation meant the supplier avoided buying a new tractor, and could therefore offer a lower hourly rate than those who followed the requirements. KOFA concluded that the deviation would distort competition, that it was material, and that the contracting authority was obliged to reject (KOFA case 2025/103). It made no difference that the same reservation had been accepted in an earlier competition run by the same municipality.
And at the other end of the scale: in a furniture procurement, a supplier wrote its own payment terms into the cover letter, including ‘net 30 days’, where the contracting authority had asked for ‘payment in arrears per 30 days’. KOFA called the reservation ‘of an entirely subordinate nature’, without any appreciable practical or financial consequences. Even so, the board concluded, with some doubt, that the contracting authority was entitled to reject, partly because the municipality had a legitimate wish for identical contract terms across all its agreements (KOFA case 2013/8, decided under the previous regulation, but DFØ still uses it as an example). In other words, even a trivial reservation about payment terms can cost you the competition.
Where many trip up
As we read the rules and the KOFA cases DFØ refers to, these are the recurring pitfalls:
- Your own standard terms. In the furniture case above, KOFA assumed that the supplier had simply pasted in its own standard condition without noticing the contracting authority’s terms. The board added that a general reservation in the form of the supplier’s own standard terms in full would ‘obviously’ have been material. So do not attach your company’s general terms of sale without checking them against the contract.
- Ticked ‘no deviations’, but deviations in the text. Many bid forms have a box to tick confirming that the bid contains no reservations. Ticking it does not help if the content says otherwise. In a case about laundry services, the supplier had ticked the box for no reservations, but wrote one sentence in the pricing form stating that the mats were a ‘subscription product priced per week’ where they should have been priced per shift. That sentence made the bid impossible to compare, and KOFA treated it as a material deviation. What is decisive, the board wrote, ‘must be what has actually been offered’ (KOFA case 2022/277).
- Ambiguity instead of reservations. Vague wording is no safer than clear reservations. The regulation states plainly that the supplier bears the risk of ambiguities in the bid. Ambiguities that are not insignificant can be rejected in the same way as deviations.
- Hoping to tidy it up afterwards. In an open or restricted tender procedure, negotiation after the bid deadline is not allowed. The contracting authority may ask for clarifications, but a clarification must not result in the bid being improved. So a reservation normally cannot be withdrawn after the deadline.
What to do instead
The most important advice is simple: ask questions before the deadline, rather than making reservations after it.
Read the contract terms as carefully as the specification. Go through the terms early and decide whether you can live with them, before someone raises a concern late in the process.
Use the clarification round. The contracting authority bears the risk of ambiguities in the tender documents, and under the Norwegian rules, in procurements above the EEA threshold, it must answer questions no later than six days before the bid deadline, provided you asked in time. The answers are sent to everyone. If a term is unreasonable or unclear, this is the place to raise it. The contracting authority can then change the tender documents for everyone, rather than leaving you alone with a deviation.
Check whether the competition allows dialogue. In Norway, in a tilbudskonkurranse (a Norwegian procedure for contracts below the EEA thresholds that allows dialogue after the deadline), the contracting authority may choose to hold a dialogue with suppliers after the deadline, but only if this is stated in the procurement documents. In a competition with negotiation, deviations can be negotiated away. In a pure tender procedure, they cannot.
If you must make a reservation, make it clear and put a price on it. If the contracting authority can price the deviation, there is a better chance that the bid will be evaluated rather than rejected. But note that the contracting authority is to price the deviation based on the most it could cost them, not what it is most likely to cost. A reservation that cannot be priced points towards a material deviation.
If you are rejected, ask for the reasons. The contracting authority must give written notice with a brief statement of reasons. Read it carefully and consider whether the rejection holds up. We have written more about how to learn from the tenders you did not win.
Does this apply across Europe?
The Norwegian rules are based on the EU public procurement directive, Directive 2014/24/EU, and the main principle is shared across the EU and EEA: a bid that departs from the procurement documents can be regarded as irregular and rejected. The examples in this article and the bar for what counts as ‘material’ are Norwegian, however, and may look different in your country.
In short
A reservation is a deviation, and deviations that are not insignificant give the contracting authority a right to reject. If the deviation is material, it has a duty to do so. The safest course is to clarify whatever you are unsure about before the deadline, and submit a bid without reservations. We at Cobrief are always happy to have a chat about how you can gain better control of the requirements and terms in your next tender.
This article reflects Cobrief’s assessment and is not legal advice. The rules change regularly, so always check the applicable regulations and the tender documents for the competition in question.