The standstill process has become an established part of regulated procurement.
The requirement 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 for them 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 award and the signature of a public contract, and made it necessary to inform all bidders about the outcome of tender procedures.
Currently, there is a requirement for buyers to notify each bidder, directly, of the outcome of the evaluation process.
The potentially successful bidder is informed that, subject to no challenge, they will be awarded the contract, whilst unsuccessful bidders are provided with specific information regarding their own bid and the successful bid and are given a defined period in which to determine whether to challenge the decision of the authority.
After 10 calendar days, if no legal challenge has been raised, a contracting authority can award the contract to the successful bidder.
The Procurement Bill [as Amended in Grand Committee], however, proposes change 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 for suppliers to understand what this notice will do once the Procurement Bill becomes law.
Under 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, the contracting authority must provide each bidder that submitted an evaluated tender with a summary, 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 gap between the issuing of the summary and the publication of the contract award notice, however 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.
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.
Once the standstill period has passed without legal challenge, then, as currently, the contracting authority can enter into the contract with the successful bidder.
Find further procurement reform comment and insight at www.procurementreform.co.uk.
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