A civil contractor reads a council drainage tender and sees a problem. The documents specify open-cut through a section of road that carries 14,000 vehicles a day, with full traffic management and a six-week closure. The contractor has done this alignment before and knows the pipe can be bored — no closure, three weeks shorter, and about $90,000 cheaper.
They submit the bored solution. It is the best offer the council receives by a wide margin.
It is also never evaluated, because it was submitted instead of a conforming tender rather than alongside one — and that single procedural point put the whole bid outside what the panel was permitted to consider.
Two different things with similar names
The two terms get used interchangeably on site and they are not the same thing at all. One is a category of failure; the other is a deliberate commercial strategy — and one that makes you a designer, with the duties covered in our guide to safety in design.
| Non-conforming tender | Alternative tender | |
|---|---|---|
| What it is | A tender with too many non-compliances against the conditions of tender[1] | A proposal offering an alternate solution to the specification[1] |
| Usually | An accident | A decision |
| Outcome | Excluded, often before evaluation begins | Evaluated — if the conditions permit it and you followed the rule |
| What causes it | Missing a mandatory requirement, an unreturned schedule, a late submission, an unsigned form | Choosing to offer a different method, product, sequence or design |
| Fix | Compliance discipline before submission | Lodge it correctly — see below |
The connection between them is the trap. An alternative tender lodged incorrectly becomes a non-conforming tender. That is exactly what happened in the opening scenario, and it is the single most expensive misunderstanding in this topic.
The one rule that decides everything
If you remember nothing else from this guide, remember this.
For an alternative tender to be considered, it must be lodged together with a complying tender. You effectively submit two tenders. If an alternative is lodged without an accompanying complying tender, it is assessed as non-conforming to the conditions of tender.[1]
Victorian public construction guidance states the position the same way from the buyer’s side: tender documentation should clearly state whether alternative tenders will be accepted and the rules for submitting one — for example, that an alternative tender may be submitted subject to a conforming tender also being submitted.[2]
The logic is procedural rather than obstructive. An evaluation panel has to compare like with like. If one tenderer has priced the specified works and another has priced something different, there is no common basis for comparison, and the process stops being defensible. The conforming tender is what makes your alternative comparable — it is the control against which the alternative’s value can be measured.
Two practical consequences:
- You have to do the work twice. Price the specified job properly and price your alternative. If you are not prepared to do both, do not offer an alternative.
- Your conforming tender must be genuinely competitive. A deliberately weak conforming bid submitted only to unlock the alternative is transparent, and it damages the credibility of both.
What makes a tender non-conforming
Evaluation panels typically begin by identifying which tender responses are conforming and which are non-conforming. A response that fails to provide all the information requested can be classed as non-conforming and never fully evaluated.[3]
That first sentence is worth sitting with. The conformance check happens before the scoring. A brilliant methodology and a sharp price are irrelevant if the submission does not get past the gate.
| Cause | How it happens |
|---|---|
| Late lodgement | The most absolute of all. Portal clocks are not negotiable and “the upload was running” is not a submission |
| Unreturned schedule | A returnable listed in the conditions that nobody noticed. Common with statutory declarations, conflict-of-interest forms and pricing annexures |
| Failed mandatory requirement | Insurance below the stated limit, missing prequalification category, absent licence or accreditation |
| Unsigned or improperly executed forms | Signed by someone without authority, or not signed at all |
| Qualifications and caveats | Attaching your own terms, or pricing “subject to” conditions where the tender does not permit qualification |
| Pricing in the wrong format | Submitting your own schedule instead of the issued one, or leaving items unpriced |
| Alternative without a conforming tender | The trap in §03 |
| Exceeding a word or page limit | Increasingly enforced, and increasingly automated |
Our guide to common tender mistakes that cost civil contractors work covers the compliance discipline that prevents most of these, and the mandatory requirements checklist is built to catch them before submission.
The accidental non-conformance
Worth naming separately, because it is the version that hurts good contractors.
Nobody sets out to submit a non-conforming tender. It happens because the conditions of tender are a separate document from the specification, they are read once at the start of a three-week bid period, and the returnables list lives inside them. By submission week the team is deep in pricing and methodology, and the compliance list has not been looked at since day one.
The fix is mechanical and takes twenty minutes at the start of every bid:
- Extract every returnable and every mandatory requirement into a single checklist on day one, with a named owner and a due date against each.
- Mark the ones that take external time — insurance certificates at a higher limit, a statutory declaration requiring a witness, an accreditation you do not yet hold. These are the ones that fail at 4pm on the last day.
- Do a conformance pass 48 hours before submission, against the checklist rather than against memory, done by someone who did not write the bid.
- Submit a day early. Portals fail, files exceed size limits, and a rejected upload at 4:55pm is a lost bid.
That last point earns its place. A large share of non-conformances are lodgement failures rather than content failures, and every one of them is prevented by not leaving it to the final hour.
What an alternative tender actually is
An alternative tender is a proposal offering an alternate solution to the specification.[1] In civil construction that usually means one of five things:
- A different construction method — trenchless instead of open-cut, precast instead of in-situ, a different sequence of work.
- A different material or product — an alternative pipe class, a proprietary pit, a different pavement treatment, a recycled material substitution.
- A different design solution — where the tender documents are performance-based rather than fully prescriptive.
- A different programme or staging — night works, half-width construction, a compressed closure.
- A different commercial structure — a different contract model, a different risk allocation, or a proposal to take on scope the principal had separated out.
What all five have in common is that they change something the tender documents specified. That is precisely why they must sit alongside a conforming offer — the panel needs to be able to see what the alternative is an alternative to.
Finding out whether alternatives are permitted
Before spending any effort, establish three things from the conditions of tender.
| Question | Where to look | What it means |
|---|---|---|
| Are alternatives accepted at all? | Conditions of tender — the documentation should state this clearly[2] | If it says no, an alternative is a non-conformance, not an opportunity |
| What are the rules for submitting one? | Same section | Almost always: a conforming tender must accompany it |
| How will non-conforming offers be treated? | Where an agency is prepared to consider them, the conditions should describe how[2] | Occasionally an agency reserves a discretion to consider them. Do not rely on it |
Where the documents are silent, ask during the clarification period. It is a legitimate question, the answer goes to every tenderer, and a written answer on the record is worth far more than an assumption. The mechanics of asking well are in our guide to tender clarifications and the RFI window.
One caution about silence. If the conditions do not mention alternatives, the safe reading is that they are not invited. Submitting one anyway, without asking, risks the whole bid.
When an alternative is worth the effort
Alternatives cost real money to prepare — you are pricing the job twice and writing a technical justification on top. Reserve them for cases where the advantage is substantial and demonstrable.
- You have a genuine capability advantage. You own the boring rig, or you have done this exact treatment forty times. The alternative is a way of putting your advantage in front of the panel.
- The specified method carries a risk you can remove. Traffic disruption, dewatering, working adjacent to a live service, an environmental constraint. Risk removal is persuasive to an evaluator in a way that price alone is not.
- The saving is large enough to matter. A 3% difference will not overcome the administrative friction of evaluating an alternative. A 20% difference will.
- The programme benefit is real and the principal cares about time. On a road with high traffic volumes or a project with a funding deadline, weeks are worth more than dollars.
- The documents are performance-based. Where the specification states an outcome rather than a method, an alternative is closer to an invitation than a departure.
When it is not
Equally important, and more often ignored.
- When the specification is prescriptive for a reason you do not know. Asset owners standardise materials and methods for whole-of-life maintenance reasons. Your cheaper pipe may be excluded from their asset register.
- When a third party controls the outcome. If a water authority, rail authority or road authority must approve the design, an alternative they have not seen is a programme risk rather than a saving.
- When it saves you money rather than the principal. An alternative that improves your margin without improving the outcome is not an alternative, it is a qualification, and evaluators recognise the difference immediately.
- When you cannot substantiate it. An assertion that a method is equivalent is not evidence. See §10.
- When the tender is a lowest-conforming-price process. Some approaches to market leave the panel no discretion to consider anything else.
- When you are short on time. A rushed alternative attached to a rushed conforming bid usually damages both.
This is a legitimate input to the bid/no-bid conversation rather than a decision made in the final week — our go/no-go framework covers how to weigh the extra effort against the probability of winning.
How to structure an alternative tender
The structural principle: make it trivially easy for the panel to evaluate the alternative separately from the conforming offer, and to compare the two. Anything that forces an evaluator to disentangle the two documents works against you.
- Submit the conforming tender complete and standalone. It must be capable of being evaluated and awarded on its own, with no reference to the alternative and no dependency on it.
- Label the alternative unmistakably. “Alternative Tender — Trenchless Installation, Ch. 240–390” on every page. Never let a page of the alternative be mistaken for part of the conforming offer.
- Price it separately and completely. A full priced schedule for the alternative, in the same format as the issued schedule, so the panel can compare line by line.
- State the delta plainly and early. Cost difference, programme difference, and any change to risk allocation, in a short summary table on the first page.
- Explain what changes and what does not. Evaluators worry about unstated consequences. Be explicit that the outcome, the standards, the design life and the maintenance obligations are unchanged — or say precisely how they change.
- Substantiate the technical case. See below.
- Address the approvals. Whose sign-off does the alternative need, have you had a preliminary conversation, and what is the programme impact if approval is slow?
- Confirm the alternative meets every mandatory requirement too. An alternative that fails a mandatory is a non-conformance inside a compliant bid.
What evaluators need in order to say yes
An evaluation panel accepting an alternative is taking a documented risk. They must be able to record why the alternative represents value for money and why it was permissible to accept it. Your job is to write the paragraph they will paste into the evaluation report.
| What they need | What that means in your submission |
|---|---|
| Equivalence or improvement, evidenced | Standards the alternative complies with, cited by number. Test data, manufacturer specifications, design life comparison. Not “equivalent or better” as a claim |
| Precedent | Where you have done this before — project, client, date, value, and a referee who will confirm it. Precedent does more work here than anywhere else in a bid |
| Third-party endorsement | An engineer’s certification, a manufacturer’s warranty, an asset owner’s prior acceptance |
| Risk analysis, honestly done | Including the risks your alternative introduces, with controls. A one-sided case reads as a sales pitch |
| Whole-of-life position | Asset owners think in decades. Maintenance, durability and renewal cost matter more than construction cost to the people who will own the asset |
| A clean comparison | A single table: specified solution vs alternative, on cost, programme, risk, disruption and whole-of-life |
The general technique for writing to what an evaluator must record is covered in our guides to how government tenders are scored and addressing selection criteria.
Who carries the risk of your alternative
A point contractors consistently underweight at tender stage and discover during delivery.
When the principal accepts your alternative, the risk of it working generally moves to you. The specified method carried the principal’s design assumption; your method carries yours. If the bore hits rock it did not expect, if the precast unit does not fit, if the alternative pavement fails early, the argument that the documents told you to do it is no longer available.
Three practical consequences:
- Price the risk you are absorbing, not just the cost you are saving. A $90,000 saving that comes with $60,000 of transferred risk is a $30,000 saving.
- Check what happens to the latent conditions position. If your alternative depends on ground conditions, read the clause before you offer it — our guide to latent conditions covers how the entitlement works and how principals amend it.
- Be explicit about design responsibility. If your alternative involves a design change, say who is designing it, who is certifying it, and whether professional indemnity cover extends to it. See insurance requirements for government civil tenders.
Your idea, their tender
A reasonable concern, and one worth being clear-eyed rather than paranoid about.
An alternative tender discloses your good idea to the buyer, and buyers run future tenders. In practice, most Australian government conditions of tender address confidentiality and intellectual property, and reputable agencies do not re-specify a tenderer’s proprietary solution and re-tender it. But the risk is not zero, particularly with genuinely novel methods.
- Read the IP and confidentiality clauses in the conditions of tender before you disclose anything you regard as proprietary.
- Mark proprietary content clearly as confidential where the conditions provide for it.
- Distinguish method from know-how. Describing that you will bore rather than open-cut discloses little. Handing over your full design, sequencing and production data discloses a great deal. Give enough to be credible, not everything you know.
- Be realistic about what is actually proprietary. Most civil alternatives are standard techniques applied well, not trade secrets — and treating a common method as confidential reads oddly.
Alternatives that work in civil construction
| Alternative | Why it lands | What has to be proven |
|---|---|---|
| Trenchless instead of open-cut | Removes road closure, traffic management and reinstatement | Ground suitability, service clearances, achievable line and grade |
| Precast instead of in-situ | Programme compression and reduced on-site risk | Structural equivalence, joint detailing, craneage and access |
| Stabilisation instead of excavate-and-replace | Less spoil, less cartage, shorter closure | Material testing, design life, achieved strength |
| Recycled material substitution | Cost, and it may support the principal’s own sustainability targets — see sustainability and IS ratings | Specification compliance, source consistency, testing regime |
| Alternative staging or night works | Reduced disruption to a busy corridor | Noise and approval constraints, cost impact, community position |
| Alternative pipe class or material | Availability and cost | Asset owner acceptance — often the hardest gate |
The recurring gate across all six is the asset owner. A council engineer may love your alternative and still be unable to accept it because the asset standard does not permit it. Where you can, establish that acceptability during the clarification period rather than discovering it at evaluation.
Checklist
Before you decide to offer one
- Do the conditions of tender permit alternatives? If silent, ask during the clarification period.
- What are the stated rules for lodging one?
- Is the advantage substantial — 15%+ on cost, or a material programme or risk benefit?
- Can you substantiate equivalence with standards, test data or precedent?
- Who must approve it, and have you tested acceptability?
- Do you have time to price the job twice, properly?
Before you submit
- Is the conforming tender complete, competitive and capable of being awarded on its own?
- Is the alternative labelled unmistakably on every page?
- Is it priced separately, in the issued format?
- Is there a one-page comparison of cost, programme, risk, disruption and whole-of-life?
- Does the alternative satisfy every mandatory requirement?
- Have you stated who carries the risk and who is responsible for any design?
- Has the compliance pass been done by someone who did not write the bid?
The short version
- Non-conforming is an accident; alternative is a strategy. An alternative lodged wrongly becomes a non-conformance.
- The rule: lodge the alternative together with a complying tender. Without one, it is assessed as non-conforming.
- Check the conditions of tender first. If they are silent on alternatives, ask — do not assume.
- Substantiate with standards, test data and precedent. “Equivalent or better” is a claim, not evidence.
- Accepting your alternative usually moves the risk of it working to you. Price that, do not just price the saving.
- The asset owner is the gate that most alternatives fail at. Test acceptability early.
References
This guide is general information for Australian civil construction businesses and is not legal advice. Conditions of tender differ between buyers and govern whether and how alternatives may be submitted. All examples are illustrative. Always work from the conditions of tender for the specific approach to market.
- Local Government Procurement (NSW) — What is the definition of a ‘Non-Conforming Tender’ and an ‘Alternative Tender’? (lgp.org.au). Alternative tenders described as proposals from suppliers who choose to offer an alternate solution to the specification; a tender with too many non-compliances described as a non-conforming tender; and the requirement that for an alternate tender to be considered it must be lodged together with a complying tender, such that the buyer effectively receives two tenders, with the consequence that if a tenderer lodged the alternate tender without an accompanying complying tender it would be assessed as non-conforming to the conditions of tender. ↩ ↩ ↩ ↩
- Victorian Department of Treasury and Finance — Tender Documentation (Public Construction — Guidance 3.6) (dtf.vic.gov.au), and Buying for Victoria — Tender Documentation (Construction Guidance 3.6). Guidance that tender documentation should clearly state whether alternative tenders will be accepted and the rules for submitting an alternative tender — for example that an alternative tender may be submitted subject to a conforming tender also being submitted — and that in the event an agency is prepared to consider non-conforming offers, the conditions of tender should describe how the agency will treat those offers. ↩ ↩ ↩
- Business Queensland — Glossary of terms used in government tendering (business.qld.gov.au); Australian Tenders — The Tender Process: From Start to Finish. Government tender panels typically beginning by identifying which tender responses are conforming or non-conforming, and the position that failure to provide all the information requested in the tender can result in a response being classed as non-conforming and never fully evaluated. ↩