In these questions and answers we assume that the procurement is regulated by the Public Contracts Regulations 2006.
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 that 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?
The letters must include (1) the award criteria, (2) the name of the successful bidder(s), (3) the score of the recipient, (4) the score of the successful bidder(s), (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).
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?
It depends on whether those unsuccessful bidders have already been given the reasons why they were unsuccessful. If a bidder who dropped out earlier or was excluded earlier has, by the time the award decision notices are sent, still not been informed of the reasons why they were unsuccessful, you will be obliged to send them an award decision notice.
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 must also be a working day.
The standstill period should be at least ten days. Where award notification letters are not sent electronically, 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.
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 and today we have received a request from one of the unsuccessful bidders for a "debrief" – do we have to agree to this?
The "debrief" information should have been contained in the award notification letters and provided the award letters were compliant there is no obligation to provide any further debrief. However, contracting authorities may wish to consider providing additional information to bidders that request it.
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. 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 (FOIA) 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.