Scottish Government

Contract Award and Debriefing

Quicklinks

Introduction to the Mandatory Standstill Period

Operation of the Mandatory Standstill Period

Contract Award Notification

Debriefing during the Mandatory Standstill Period

Standard letter to successful and unsuccessful bidders

Debriefing

Objectives

Responsibility

Timing

Reasons for Rejection

Points to remember

Background

The Alcatel judgment, in 1999, found that EU national courts must, in all cases, be able to review and set aside award decisions on public procurement contracts which are subject to the EU Directives before the contract commences. In Alcatel, the court indicated that Austria was in breach of European Law where the entry into force of a contract immediately following the decision to award the contract prevented aggrieved parties from challenging the decision and having it set aside. The situation being similar in the UK, a mandatory standstill period between notification of award decision and contract commencement was required to allow unsuccessful tenderers a reasonable opportunity to apply in court for interim measures, which could lead to the award decision being overturned.

This section explains the outcome of the negotiations with the European Commission relating to the length and scope of the mandatory standstill period, the new requirements relating to the process of notifying the award decision and the new debriefing requirements during the standstill period

Timing

A small number of legal challenges have already been brought against UK contracting authorities where a standstill period was not applied. Following agreement on the resolution to the proceedings brought against the UK by the Commission, contracting authorities should introduce the mandatory standstill period with immediate effect.

The Mandatory Standstill Period is now provided for in Scots Law by Regulation 32(3) of the Public Contracts (Scotland) Regulations 2006, whereby it is necessary for the contracting authority to issue notice of their decision to unsuccessful candidate suppliers at least 10 days prior to their entry into the contract.

Operation of the Mandatory Standstill Period

For all public sector and utilities procurements covered by the full regime of the EU Procurement Directives, the mandatory standstill period means that a period of not less than 10 calendar days must elapse between the written communication of the award decision to all tenderers and contract commencement. The mandatory standstill period does not apply to below threshold procurements, to procurements otherwise outside the full scope of the Directives (e.g. Part B services) or where there is only one tenderer including those following the urgency provision under the negotiated procedure where single tendering takes place.

The mandatory standstill period begins the day after the award decision is notified to all tenderers in writing by either fax or e-mail. If the standstill period ends on a non-working day, it must be extended to the next working day. Although the minimum standstill period is 10 calendar days, in many cases it may be necessary for the period to exceed this minimum duration in recognition of the implications of the obligations on contracting authorities explained at paragraphs 8, 9 and 10 below.

Contract Award Notification

The notification to unsuccessful bidders of the contracting authority's award decision must contain:

• the contract award criteria;
• where appropriate, the score the tenderer obtained against those award criteria;
• where appropriate, the score the winning tenderer obtained; and
• the name of the winning tenderer.

Debriefing during the Mandatory Standstill Period

Perhaps of greatest significance in terms of practical effect, is the obligation on the contracting authority to provide additional debriefing within the mandatory standstill period if an unsuccessful tenderer requests it by the end of the second working day following the commencement of the standstill period. Contracting authorities must allow for a minimum of three working days between providing the additional debriefing and the end of the standstill period.

In accordance with existing legislation, the additional debrief shall inform the tenderer of the reasons why he was unsuccessful and, if the tenderer submitted an admissible tender, shall inform him of the characteristics and relative advantages of the successful tender.

Where a request for additional debriefing is received within the standstill period butafter the two working days deadline, contracting authorities are not bound to provide further debriefing within the standstill period but still need to provide it within 15 days of receiving a written request, as per existing legal obligations.

The obligation to provide additional debriefing within the mandatory standstill period has the potential to impact upon the precise duration of the standstill period. Scenarios can be envisaged where for a variety of reasons (not all within the control of the contracting (authority) it will not be possible to provide additional debriefing and allow for the elapse of 3 working days within the minimum mandatory standstill period of 10 calendar days.

Therefore, to avoid as much uncertainty as possible about the contract commencement date, contracting authorities may wish to consider adopting either of the following practices:-

• ensure that the standstill period is calculated to make allowance for a reasonable period of time being set aside to conduct additional debriefing. In almost all cases, this will mean that it is likely to be in excess of the minimum 10 calendar days;
• Provide the additional debrief information (as detailed above) to all unsuccessful tenderers at the time of contract award decision notification. This would obviously mean that the debrief would have to be in writing as opposed to the face-to-face debriefs that many contracting authorities may provide at present. Whilst it has the potential for generating nugatory work (in the sense of providing all unsuccessful tenderers with additional debriefing irrespective of whether they would have asked for it if not automatically provided), it means that contracting authorities need not be concerned about the prospect of the contract commencement date having to slip as a consequence of being asked to provide additional debrief information and not being able to do so at least 3 working days prior to the end of the mandatory standstill period.
• A suggested form of wording that contracting authorities may consider incorporating into their letters to the successful and unsuccessful tenderers can be found below.

Please note that the UK Regulations require a supplier to inform the contracting authority before approaching the court seeking any legal remedies, explaining the basis for its application to the court. Therefore the contracting authority should be aware of any legal challenge prior to the end of the mandatory standstill period.

SPD have produced standard letters that should be issued to successful and unsuccesful bidders:

Letter to use for companies that did not pass the PQQ stage

Letter to use after Evaluation Process has identified a winner

Letter to use after Standtill Period and no challenge

Letter to use for unsuccessful bidders

Debriefing

Debriefing is a way of helping suppliers to improve their competitive performance, which in turn produces benefits to procuring organisations. Unsuccessful suppliers and tenderers have a right to know the reasons for their rejection.

Objectives

• To assist suppliers to improve their performance. A debriefing, needs to cover, diplomatically, the weaknesses of the unsuccessful bid. Suppliers will then have the opportunity to address these deficiencies in any future bids.
• To offer unsuccessful tenderers some benefit from the time and money they have expended in preparing their tenders.
• To establish and maintain a reputation as a fair, honest and ethical customer. This will help to ensure that high quality suppliers will be encouraged to submit tenders.
• To act as a feedback mechanism to ensure that your tender packages are understood fully.

Debriefing should always be offered to unsuccessful tenderers on request. (See EU Guidance). The debriefing should be carried out by those involved in the tender evaluation. For low value/low risk contracts a telephone de-briefing by the purchaser will suffice. In other cases a formal debriefing meeting is recommended.

Debriefing will also be necessary for unsuccessful candidates at the Pre-Qualification Stage of the Restricted Procedure

Procurement staff should normally normally chair the debriefing. Other UIG members or end-users can still provide guidance and/or assistance. Where a formal debriefing meeting is required, this should involve representatives from both operational and procurement professionals to ensure that the debriefing is carried out by experienced and fully trained personnel.

Timing

Where the contract is above the EU thresholds, there are strict deadlines dictated by the Procurement Directives.

Where the contract does not fall within the directives, debriefing should take place at a mutually convenient time within a reasonable period. Under World Trade Organisation (WTO) rules, debriefing must take place "promptly" on request and under the European Communities (EC) Directives within 15 days of that request.

The timing of the debriefing within the procurement process will depend upon whether:

• Applicants have been eliminated at the Pre-Qualification Stage;in which case, debriefing should take place after the tender list has been decided; or
• Applicants were invited to tender but submitted unsuccessful bids, in which case, debriefing should never take place before the contract is awarded; but only once all unsuccessful tenderers have been formally informed.

Please Note - Candidates eliminated at the Pre-Qualification stage are also entitled to a Post-Tender debriefing in addition to the Post-Appraisal debriefing.

A tender may be rejected for two reasons:

• Fails to meet the specification ; or
• it meets the specification criteria but is not ranked as offering the best Value for Money (VFM).

It is likely that some parts of the bid are favourable and these should be highlighted as having been evaluated positively. The areas which may be highlighted as being unfavourable include:

• simply beaten by a stronger bidder despite putting forward a good proposal;
• production schedules too long;
• design deficiencies;
• delivery period not acceptable;
• the full requirement can not be supplied;
• organisation and administration not satisfactory;
• experience not adequate;
• personnel skills not adequate;
• equipment not fit for purpose;
• sub-contracting management weak;
• cost and schedule controls not adequate;
• industrial relations uncertain;
• quality management inadequate;
• suppliers contract terms and conditions being imposed;
• tender not submitted in the format requested resulting in essential information not being submitted for evaluation;
• after sales service weak;
• financial standing weak.

Points to remember

• Where contracts are subject to the Procurement Directives, tenderers are entitled to a written explanation of the reasons why their tender was unsuccessful.
• In other contracts, where the Directives do not apply, debriefing may be undertaken over the telephone, by letter, or face-to-face. Which of these methods is the most appropriate is dependent on the complexity and value of the contract.
• Care must be taken to ensure that all information provided to a supplier can be justified in the event of a formal complaint and/or legal action being made against the procuring organisation.
• Prior to the meeting, it is essential that the tenderer understands that the discussion is being carried out with the object of mutual longer term benefits and that the company will be told honestly of strengths and weaknesses contained in their tender/quotation. The meeting must not be viewed as a forum for debate as to the validity of a tender.
• The tenderer should be informed at the start of the interview that the weaknesses to be covered are those perceived by a multi-skilled tender evaluation team.
• It must be made clear to each tenderer that only their own tender will be discussed. Under no circumstances will such things as commercial terms, innovative ideas put forward by another tenderer etc. be disclosed.
• Debriefing meetings must be carefully planned and executed and only carried out by experienced personnel.
• At the end of the interview, suppliers should be asked if they have any constructive comments on the Invitation to Tender (ITT) documentation and the tendering process generally.
• A record of the debriefing meeting must be made and placed on the appropriate registered file. The record must not be sent to suppliers, they can make their own notes of the debrief.
• Debriefing procedures apply to those applicants not invited to tender as well as unsuccessful tenderers. The UK's international obligations on public purchasing apply to both and must be met.