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We have tried to list some of the most commonly asked questions about the procurement process, but we welcome your feedback - if your question isn't included, please get in touch.

Award and standstill

Can we abandon a procurement following receipt of bids?

Yes, provided that you respect Regulation 32(11) of the Public Contracts Regulations 2006 which provides that a contracting authority shall, as soon as possible after the decision has been made, inform any bidder which submitted an offer of its decision to abandon or to recommence a contract award procedure in respect of which a contract notice has been published. It is good practice to make it clear in procurement documents that the contracting authority reserves the right not to award any contracts as a result of the procurement process, and that the contracting authority will not be liable for any of the bidders' costs in submitting a bid.

Can we award different bidders different lots?

Only if the use of lots was anticipated by the OJEU notice and the proposed award is consistent with the procurement documentation.

What information should be included in award letters/letters to unsuccessful bidders?

For procurements commenced before 20 December 2009, the letters must include (1) the award criteria, (2) the name of the successful bidder(s), (3) the score of the recipient; and (4) the score of the successful bidder(s). For procurements commenced on or after 20 December 2009, award letters must also include (5) details of the reason for the decision, including the characteristics and relative advantages of the successful tender; and (6) confirmation of the date before which the contracting authority will not enter into the contract or framework agreement (ie, the date after the end of the standstill period). Some commentators are stating that best practice is to include all the information in all award letters from 20 December, regardless of when the procurement process commenced.

Can we use standard wording for the "characteristics and relative advantages"?

Probably not, as you will need to inform each bidder of the advantages of the winner relative to their own tender. This is likely to mean that each letter needs to be drafted individually.

Do we need to send award notification letters to unsuccessful bidders who dropped out earlier in the competition, eg, at pre-qualification stage?

For procurements commenced before 20 December 2009, award letters need to be sent to all bidders who have participated, no matter how early in the process they were eliminated.

For procurements commenced on or after 20 December 2009, award letters do not need to be sent to bidders who were eliminated earlier in the process, provided that when the bidders were eliminated, they were given the reasons for their elimination at that point. However, where a bidder was excluded on or after 1 October 2011, a slightly different regime will apply, as follows.

The Public Procurement (Miscellaneous Amendments) Regulations 2011, in force from 1 October 2011, state that, where a tenderer has been excluded prior to award stage, and 3 months have elapsed from the date of knowledge of the exclusion, the contracting authority will not need to send a standstill notice to the tenderer. In order for this regulation to apply, the date the bidder knew of its exclusion from the process needs to fall on or after 1 October 2011.

Do we need to send all the award letters/unsuccessful bidder letters out at once?

Yes. Staggering the sending of award notification letters is likely to be a breach of the principle of equal treatment. Also, the standstill period will not commence until all relevant letters have been despatched.

What counts as the first and last day of the standstill period?

The first day is the day following despatch of all of the award notification letters. The last day is the day before the contract is entered into (and for procurements commenced on or after 20 December 2009, must also be a working day).

The standstill period should be at least ten days. Where award notification letters are not sent electronically and the procurement was commenced on or after 20 December 2009, the standstill period is extended by five days (or less where the contracting authority can prove delivery of the award notification letter).

You can use our standstill period calculator to calculate the last date of a standstill period for any procurement commenced on or after 20 December 2009.

The contract is for Part B services only. Do we have to observe a standstill period?

The Regulations themselves do not require this, although recent case law suggests that respect for the general EU principles of transparency, equality of treatment and non-discrimination requires the holding of a standstill period for Part B contracts where there is evidence of cross-border interest. This is difficult to assess, and contracting authorities might therefore consider it easiest to simply hold a standstill period for all major Part B services contracts.

We sent out our award notification letters yesterday and today we have received a request from one of the unsuccessful bidders for a "debrief" – do we have to agree to this?

Yes, for procurements commenced before 20 December 2009. Regulation 32(4) allows bidders to request a debrief up until midnight of the second working day of the standstill period. Regulation 32(5) requires you to hold that debrief at least three working days before the end of the standstill period (or if this is not done, to extend the standstill period such that three working days elapse between the day the debrief is given and the day the standstill period ends).

For procurements commenced on or after 20 December 2009, the "debrief" information should have been contained in the award notification letters.

We sent out our award notification letters five days ago and today have received a request from one of the unsuccessful bidders for a "debrief" – do we have to agree to this?

For procurements commenced before 20 December 2009, the bidder has missed the cut off point for a debrief during the standstill period itself. However Regulation 32(9) requires you to debrief this bidder within 15 days of the date of the request.

For procurements commenced on or after 20 December 2009, the "debrief" information should have been contained in the award notification letter.

For a debrief, how much information should we give the unsuccessful bidder?

For procurements commenced before 20 December 2009, Regulation 32(4) requires the debrief to consist of the reasons why the bidder was unsuccessful through confirming the “characteristics and relative advantages” of the successful bid. Commercially, contracting authorities must make a sensible judgment about how much information to include (particularly given that bidders will also be able to use Freedom of Information legislation to find out more in the event that a contracting authority gives only very limited information). Generally, contracting authorities should consider giving as much information as they are free to disclose that is likely to dissuade the bidder from making a challenge.

For procurements commenced on or after 20 December 2009, the "debrief" information should have been contained in the award notification letter. However, contracting authorities may wish to consider providing additional information to bidders that request it.

We held the debrief on day eight of the standstill period – can we still go ahead and enter into the contract once the standstill period has expired?

Not if the debrief was requested within two working days of the despatch of the award notification letter and the procurement was commenced before 20 December 2009 – in such circumstances, you must allow at least three working days between the debrief and the date that the standstill expires (see Regulation 32(5)).

For procurements commenced on or after 20 December 2009, the "debrief" information should have been contained in the award notification letter.

Do we need to answer bidder questions about the process during the standstill period?

The procurement Regulations do not require contracting authorities to respond to all bidder questions about the procurement process during the standstill period. There is only, for procurements commenced before 20 December 2009, the requirement to provide reasons for the decision. However, it is generally a good idea to respond promptly to any reasonable bidder queries as this is often the easiest way to address any concerns bidders may have about the process. Some bidder questions may also be requests under the Freedom of Information Act, where the contracting authority is obliged to provide a response, and may be obliged to disclose the information.

Do we have to agree to meet a bidder?

No. There is no requirement in the legislation for a face to face debrief. However, it is often in the interests of the contracting authority to meet a bidder and listen to any concerns they may have. It is also advisable to keep a detailed record of the debrief.

A bidder has submitted a Freedom of Information Act request during the standstill period. Do we need to respond to the FOIA request before we can enter into the contract?

There is no requirement to respond to a FOIA request during the standstill period prior to entering into the contract. However, you must comply within the time limits set out in the Freedom of Information Act.

Does the fact that we have received a Freedom of Information Act request mean we have to disclose absolutely everything the bidder asks for?

No. It is becoming increasingly common for unsuccessful bidders to accompany requests for a debrief with FOIA requests. The usual exclusions from disclosure under the Freedom of Information Act will apply, and in many cases information held in relation to a procurement will be commercially sensitive and/or confidential. Advice should be sought on the application of the relevant exemptions to information held. Whether an exemption applies may depend on when the FOIA request is made.

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Call 0844 561 6121 to speak to someone in our team or email us with your query.