Clarifications & Negotiations

Section 1

Purpose

Post-tender clarifications are the formal process by which the QS resolves ambiguities, qualifications and arithmetic errors in the tender returns of the preferred tenderer before the tender report is finalised. Clarifications must be strictly limited to matters of interpretation and omission — the tender price itself cannot be renegotiated through the clarification process unless the Instructions to Tenderers expressly permitted best-and-final-offer (BAFO) submissions or post-tender negotiation.

Negotiation is a distinct process from clarification and should be used sparingly and with clear client authority. Where the preferred tender exceeds the approved budget, the QS may be instructed to negotiate a cost reduction — typically through scope reduction, specification value engineering, or the removal of provisional sums. Any reduction achieved through negotiation must be documented in a formal post-tender negotiation schedule that forms part of the contract documentation.

RICS Tendering Strategies (2015) confirms that post-tender negotiation on price is permissible in limited circumstances but must be conducted transparently and with a complete audit trail. For public sector projects under the Public Contracts Regulations 2015, negotiation after tender submission is generally prohibited under the open and restricted procedures; it is only permissible under competitive dialogue or competitive procedure with negotiation.

Section 2

Key Principles

RICS Tendering Strategies (1st edition, 2015), Section 3.11 — Post-Tender Interviews, Section 3.13 — Post Tender, Section 4.3 — Managing and Reporting: governs the scope and conduct of post-tender clarifications and negotiations.
JCT Tendering Practice Note (2012): confirms that the preferred tenderer should be given the opportunity to clarify, but not to fundamentally alter, the basis of their tender before contract execution.
Public Contracts Regulations 2015, Regulations 29–30: open and restricted procedures do not permit post-submission negotiation; competitive dialogue (Regulation 30) and competitive procedure with negotiation (Regulation 29) permit structured negotiation; the chosen procedure determines what is permissible.
RICS Appropriate Contract Selection (2nd edition, 2024): design-checking periods between tender return and contract signing provide an opportunity to address post-tender design development — any changes discovered during this period that affect the contract price must be managed through agreed variation procedures.
Competition Act 1998: post-tender discussions must not involve sharing information about other tenderers' prices or positions; doing so could constitute anti-competitive behaviour.

Section 3

Practical Application

Step 1

Prepare a clarification schedule: list all items requiring clarification from the preferred tenderer's return — unacknowledged addenda, qualifications to contract conditions, pricing assumptions, provisional sum build-up, CDP design assumptions, and any identified arithmetic errors not resolved at opening.

Step 2

Issue a post-tender clarification letter to the preferred tenderer. The letter must be formal and in writing. Each clarification item should be referenced by BQ section or contract clause. Set a clear response deadline (typically five to ten working days).

Step 3

Conduct a post-tender interview if required by the project complexity or if the Instructions to Tenderers provided for it. The interview agenda should cover: programme methodology and logic; management team proposals; subcontractor appointment approach; understanding of design obligations (CDP); and response to key risk items. The interview must not discuss price except to the extent necessary to clarify specific BQ items.

Step 4

Review the preferred tenderer's clarification responses. Confirm that all qualifications to contract conditions have been withdrawn or accepted. Confirm that all addenda are incorporated. Update the tender report to reflect the clarified position.

Step 5

If the client instructs post-tender negotiation (because the tender exceeds the budget), prepare a negotiation schedule: list specific items for discussion — provisional sums to be remeasured, specification alternatives for VE, programme compression to reduce preliminaries, or PC sum adjustments. The negotiation should focus on specific items, not on a blanket price reduction.

Step 6

Conduct the negotiation meeting with the preferred tenderer and client present. Agree each negotiated item individually, recording the original tender allowance and the agreed revised figure. Do not disclose the budget surplus/deficit figure to the tenderer — negotiate on the merits of each item.

Step 7

Prepare a post-tender negotiation schedule: list each negotiated item, original tender allowance, agreed revised figure, and saving/addition. The schedule is signed by both parties and becomes a contract document. Update the tender sum to reflect negotiated adjustments.

Step 8

Issue the clarification and negotiation outcomes to the unsuccessful tenderers only after the contract is executed (or after the standstill period ends for public sector). Notify all tenderers of the outcome simultaneously. Provide a debrief to unsuccessful tenderers on request.

Section 4

Common Mistakes to Avoid

Using the clarification process to renegotiate price — clarifications are for resolving genuine ambiguities, not for extracting a discount. Disguising price negotiation as 'clarification' is improper and may constitute a breach of tender obligations.
Disclosing the approved budget to the preferred tenderer during negotiations — this gives the tenderer the information to price to the budget ceiling rather than to market value.
Conducting negotiations without a client representative present — the client must be party to all negotiation meetings; negotiating on the client's behalf without authority and without their knowledge creates professional liability risk.
Not documenting negotiated adjustments in a formal schedule — verbal agreements about price reductions have no contractual force; every negotiated change must be in writing and signed by both parties.
For public sector clients: conducting post-tender price negotiation under the open or restricted procedure — this is prohibited by the Public Contracts Regulations 2015 and may render the contract award unlawful.
Negotiating the contractor down to an unviable pricing position — the QS's duty is to secure value for the client, not to force the contractor into a loss-making position. A tenderer who cannot sustain the pricing will become a delivery risk; negotiate for genuine value, not the lowest possible number.

Section 5

APC Competency & Quick Reference

APC Competencies: Procurement & Tendering (L2) | Cost Management (L2) | Legal & Regulatory Compliance (L1) | Commercial Management (L2)

What is the difference between post-tender clarification and post-tender negotiation?

Clarification resolves ambiguities, qualifications, unacknowledged addenda and arithmetic errors in the preferred tender — it does not change the tender price. Negotiation is a deliberate process of seeking a revised price, permissible only with client authority and within the bounds of the procurement procedure. For public sector projects, price negotiation is prohibited under open and restricted procedures.

What items are appropriate to include in a post-tender negotiation schedule?

Appropriate items: specific provisional sums where the scope has been defined since tender; specification alternatives accepted as VE proposals; programme compressions that reduce time-related preliminary costs; PC sum adjustments for items now specified. Inappropriate items: blanket percentage reductions; reductions without a corresponding scope or specification change — these reduce contractor margin and tend to drive post-contract claims.

What are the rules on post-tender negotiation for public sector clients?

Under the Public Contracts Regulations 2015: open procedure (Regulation 27) and restricted procedure (Regulation 28) do not permit negotiation after submission. Negotiation is only permissible under competitive procedure with negotiation (Regulation 29) or competitive dialogue (Regulation 30), both of which require OJEU/FTS notification of the intended use of negotiation. Unauthorised negotiation may constitute a breach that renders the award unlawful.

Section 6

Clarifications & Negotiations Checklist

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Clarification schedule prepared (qualifications, unacknowledged addenda, pricing assumptions, errors)

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Post-tender clarification letter issued to preferred tenderer with response deadline

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Post-tender interview conducted (if specified in ITT) — price not discussed

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Clarification responses reviewed; all qualifications to contract conditions resolved

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Tender report updated to reflect clarified position

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Client authority obtained before any post-tender negotiation commences

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Negotiation schedule prepared (specific items only; no blanket reductions)

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Negotiation meeting conducted with client present; budget figure not disclosed

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Post-tender negotiation schedule prepared, signed by both parties

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Unsuccessful tenderers notified and debriefs offered after contract executed

Section 7

CPD Learning Outcomes

Distinguish between post-tender clarification (resolving ambiguities) and post-tender negotiation (seeking price revision), and apply each process within the limits permitted by RICS Tendering Strategies (2015) and the applicable procurement procedure.
Prepare a post-tender clarification schedule and a post-tender negotiation schedule, ensuring all agreed changes are documented in writing and form part of the contract documentation.
Identify when post-tender negotiation is prohibited under the Public Contracts Regulations 2015, and advise public sector clients on the procurement procedures that permit structured negotiation.

Section 8