The standstill process has become an established part of regulated procurement.
The need for buyers to provide feedback to bidders, prior to contract award, has had a chequered past, however. Since the Alcatel judgment https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61998CJ0081&from=EN in 1999, there has been a requirement to inform bidders of the authority’s decision.
The Remedies Directive, https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32007L0066&from=EN in 2007,established the current process of providing a ten-day standstill period between the decision to award a contract and the signing of the contract and made it a requirement for contracting authorities to inform all tenderers about the outcome of the tender procedure.
Currently, buyers are required to notify each bidder, directly, of the outcome of the evaluation process.
The potentially successful bidder is also informed that, subject to no challenge, they will be awarded the contract.
Unsuccessful bidders are provided with specific information regarding their bid and the successful bid and have a defined period in which to challenge the decision of the authority.
After 10 calendar days, if no legal challenge has been raised, the contracting authority can then award the contract to the successful bidder.
The Procurement Bill [as Amended in Grand Committee], however, proposes changes to the current structure of the standstill process.
The standstill period will commence with the publishing of a Contract Award Notice. A Contract Award Notice may sound familiar but it’s important that buyers understand what this notice will do once the Procurement Bill becomes law.
In the new regime, a Contract Award Notice is not confirmation of the award, as at present, but is actually a notice setting out that the contracting authority intends to enter into a contract.
Before publishing the contract award notice, buyers must provide a summary to each supplier that submitted an evaluated tender, containing information about the assessment of the tender, and if different, the most advantageous tender submitted in respect of the contract.
In most instances, it is likely that there will be a short gap between the issuing of the summary and the publication of the contract award notice as issuing summaries and publishing on the same day is logistically difficult.
Since the Procurement Bill proposes that the “mandatory standstill period” will begin on the day on which the contract award notice is published, and will be for a period of eight working days, the likelihood is that the actual period between issuing the summaries and the end of the standstill period will exceed the eight days.
At that stage, the contracting authority is not permitted to enter into the contract before the end of the mandatory standstill period, or if later, the end of a different standstill period provided for in the contract award notice.
Also, the contracting authority can’t enter into, or modify a contract, if, during the standstill period, a bidder brings proceedings in relation to the contract and the authority is notified of that fact.
Buyers will need to be certain of the actual date on which the standstill ends, to ensure they don’t breach the timeframe and open the authority up to challenge for breaching standstill.
Once the standstill period has passed without legal challenge, then, as currently, the contracting authority can enter into the contract with the successful bidder.
The additional administrative step of publishing a Contract Award Notice, to commence the standstill period, is going to take a bit of time for buyers to get used to. However, failure isn’t an option here, as the standstill does not commence until the notice is published.
Find further procurement reform comment and insight at www.procurementreform.co.uk.
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