Unsuccessful bidder letter
An unsuccessful bidder letter is the decision notice sent out to all unsuccessful suppliers once the evaluation decision has been made. The despatch of valid unsuccessful bidder letters, together with award letters to the successful supplier(s), represents the start of the important standstill period. As such, it is important to get this right in order to manage the legal risk of a challenge and to avoid unnecessary delay to the award of the contract.
The law in this area has been changed by the Public Contracts (Amendment) Regulations 2009, and there is as yet little guidance available on the detailed requirements relating to letters sent under the Regulations. At the time of writing, for example, it is not entirely clear how much detail needs to be included on the characteristics and relative advantages of the winning bid.
Two forms of template unsuccessful bidder letter are provided below. The first is for use only in procurements commenced before 20 December 2009. The second can be used in any procurement. A procurement process will have "commenced" for these purposes if, before 20 December 2009:
- A contract notice has been sent to the Official Journal in order to invite offers or requests to be selected to tender for or to negotiate in respect of the proposed contract or framework agreement
- The contracting authority has had published any form of advertisement seeking offers or expressions of interest in the proposed contract or framework agreement, or
- The contracting authority has contacted any supplier in order to (i) seek expressions of interest or offers in respect of the proposed contract or framework agreement; or (ii) respond to an unsolicited expression of interest or offer received from that supplier in relation to the proposed contract or framework agreement
Note that these documents are templates and will require tailoring to add the relevant detail. In particular, note that where there is more than one successful supplier (such as a framework agreement with multiple suppliers) the unsuccessful supplier letter must contain the relevant information for each successful supplier.
The letters to unsuccessful bidders and award letters should all be despatched at the same time.
Unsuccessful bidder letter for procurements commenced before 20 December 2009
This should be sent to all unsuccessful suppliers who expressed an interest in the procurement (ie, including those excluded at PQQ stage).
> Download the unsuccessful bidder letter pre 20/12/09 (Microsoft Word document)
Unsuccessful bidder letter for procurements commenced on or after 20 December 2009
This should be sent to all unsuccessful suppliers except those who have previously been notified of their exclusion from the process and the reasons for it (eg, at the PQQ stage).
This second form of letter can be used for procurements commenced before 20 December, but in such cases must be sent to all unsuccessful suppliers who expressed an interest in the procurement.
The reasons why a bidder has been unsuccessful will need to be drafted individually for each supplier, as the letter needs to address the advantages of the successful tender relative to that supplier's tender.
> Download the unsuccessful bidder letter post 20/12/09 (Microsoft Word document)