Throughout my career as a procurement practitioner, I have never seen bids submitted that are perfectly responsive to the evaluation criteria or requirements specified in the solicitation documents. As such, evaluation panels conclude the bid evaluation process declaring some of these requirements to be a minor deviation from the qualification requirements, hence the term substantially responsive bid instead of perfectly responsive bid. Thus, deviations from the evaluation requirement could either be material/major or immaterial/minor.
A minor deviation would be declared on a requirement if it does not result in a disadvantage against the procurement entity such as reducing the quality of the required goods, works or service, or violate the rights of other bidders. Also, such a decision must not create an unfair advantage of one bidder against the others in the competition. In this article, I will focus on minor deviations and the circumstances under which a minor deviation may be declared during bid evaluation. The article is based on my personal professional experience and regulations or guidelines from several procurement entities in the public and project settings.
Generally, minor deviation is a variance from a defined standard such that the integrity of the standard is not compromised, and the variance is also hardly noticeable (The Law Insider). Using the term in procurement, it means a variance from the defined evaluation criteria, terms and conditions such that quality is not compromised, neither the procurement entity nor bidders are placed at a disadvantage, the rights of procurement entity and bidders are not infringed on, and no bidder is treated unfairly. When neglected, a minor deviation should have no significant negative impact on the quality or affect the objective of the procurement in any way.
Determining Minor Deviations
Determining minor deviations during bid evaluation could be a controversial issue between the procuring entity and the evaluation panel if there is no clear guideline stating what is or is not considered. According to the Millennium Challenge Corporation Program Procurement Guidance Book, a minor deviation would be one that does not:
- affect in a substantial way the scope, quality, or performance of the works or
- limit substantially, inconsistent with the bidding document, the employer’s rights or bidder’s right under the proposed contract or
- if rectified, would unfairly affect the competitive position of other bidders presenting substantially responsive bids.
Bids which have material deviations from the requirements specified in the bidding documents are considered substantially non-responsive and are rejected.
The Public Procurement Regulatory Authority of Tanzania defines minor deviation as a departure from the requirements of the bidding documents such that it does not:
- affect the scope, quality or performance of the works specified in the contracts; or
- limits substantially, inconsistent with the bidding document, the employer’s rights, or bidder’s rights under the proposed contract;
- if rectified, would unfairly affect the competitive position of other bidders presenting substantially responsive bids (guidelines for determination of Major and Minor Deviations, PPRA, October 2017). Ppra.go.tz/phocadownload/Determination/pdf.
According to Article 43, 1(b) of The UNCITRAL Model Law on Public Procurement, 2011, “the procuring entity may regard a tender as responsive even if it contains minor deviations that do not materially alter or depart from the characteristics, terms, conditions and other requirements set out in the solicitation documents or if it contains errors or oversights that can be corrected without touching on the substance of the tender. Any such deviations shall be quantified, to the extent possible, and appropriately taken account of in the evaluation of tenders”.
Conclusion:
In summary, a minor deviation in the public procurement process refers to an acceptable variance that does not significantly impact the quality or scope of the procurement nor give any bidder an unfair advantage. Minor deviations are a subtle area that requires clear guidelines to ensure fairness and transparency. While minor deviations should not affect the substantial integrity of the procurement, it’s essential for evaluation panels to have a firm understanding of the criteria that distinguish minor from major deviations. Such clarity ensures that bid evaluations are conducted fairly, aligning with the principles of public procurement.
