Equivalence of Variant Bids in Procurement Law 2026

Definition: Equivalence of variant bids denotes the procurement law assessment of whether a bid that deviates from the tender requirements (e.g. a variant bid with an alternative design or a different product) meets the required minimum requirements on an equivalent basis and may therefore be admitted to evaluation.

Last updated: January 2026 · Legal basis: § 106 BVergG 2018; § 35 VgV; Art. 45 Directive 2014/24/EU

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What does equivalence mean?

Equivalence means that a variant bid – despite technical or design deviations from the tender specifications – offers the same benefit, quality and functionality as the tendered service. The equivalence assessment is particularly relevant for:

• Variant bids: bids with an alternative technical solution
• Equivalence evidence for product specifications: where the contracting authority names a particular product as a reference product, bidders offering an alternative product must demonstrate its equivalence
• Differing materials or building products

Equivalence with reference products

Where the contracting authority names a particular product (reference product) in the specification with the addition "or equivalent", it must admit variant bids with equivalent products. This is required by Art. 42(2) of Directive 2014/24/EU, which in principle prohibits naming products without an equivalence clause. The bidder offering an alternative product bears the burden of proving equivalence.

Minimum requirements as the benchmark

The benchmark for equivalence is the minimum requirements set by the contracting authority, which must be documented in the procurement documents. Without clear minimum requirements, an objective equivalence assessment is not possible, which raises a procurement law issue. The contracting authority must specify the minimum requirements when admitting variant bids in advance in the notice (§ 35(2) VgV).

Proof of equivalence

The burden of proving equivalence rests with the bidder. It must demonstrate in its bid that the variant bid meets all required minimum requirements. The contracting authority must examine the evidence provided carefully; it must not reject equivalence summarily without engaging substantively with the documents.

Suitable forms of evidence are:

• Technical data sheets
• Test certificates and reports
• Manufacturer declarations of conformity
• References to comparable applications

FAQ

What happens if the contracting authority rejects equivalence without examination? This constitutes a procurement law breach. The bidder can lodge a review application and challenge the flawed eligibility/bid examination.

Must variant bids always be admitted? No. The contracting authority can expressly exclude variant bids. Where they are admitted, minimum requirements must be set.

Is the CE marking sufficient as proof of equivalence? The CE marking attests conformity with European safety requirements but does not necessarily replace proof of equivalence against the specific requirements of the tender.

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Last updated: January 2026 All information provided without guarantee. For legally binding advice, please consult a law firm specialising in procurement law.