If an unsuccessful bidder requests a debriefing, contracting authorities are under a duty to give reasons for their decision.
The legal requirements:
What types of debriefing are there?
The debriefing obligations are contained within Regulation 32 of the Public Contracts Regulations 2006 (“the Regulations”). There are two types of debriefing:
- The debriefing during the Alcatel standstill period. The standstill period is triggered by the contract award letter or “standstill” letter (Regulation 32(1) to 32(3)). If a written request is received by midnight at the end of the second working day after the date of despatch of the standstill letter, the contracting authority must give the debriefing at least three clear working days before the end of the standstill period (Regulation 32(4) and (5));
- The regular debrief to be provided if requested in writing at any stage in the process where bidders are deselected. The contracting authority must give the debriefing information within 15 days of the request (Regulation 32(9) and 32(10)).
(Note, the regular debrief also applies if a standstill letter has been sent and the written request for a debriefing is received after midnight of the second working day after the date of despatch of the standstill letter.)
What information is required to be provided?
When a decision has been made to award the contract
The standstill letter must set out the:
- name of the successful bidder;
- award criteria; and
- overall score of the successful bidder and unsuccessful bidder to whom the notice is sent.
The requirement is to provide the overall score, not necessarily all scores achieved under each criteria.
If a standstill letter has been despatched and a bidder asks for the reasons why it was unsuccessful (whether or not within 2 days of the date of despatch of the standstill letter) the contracting authority has to tell the bidder the “characteristics and relative advantages of the successful tender” (Regulation 32(4) or Regulation 32(9) depending on timing of request).
Under the regular debrief, the contracting authority must also give:
• the name of the successful bidder(s) (although this should also have been given in the standstill letter) (Regulation 32(9)(b));
• the reasons why the bidder was unsuccessful (Regulation 32(9)(a)); and
• if applicable, the reasons why the bidder did not meet technical specification requirements (Regulation 32(10)).
Debriefing at any other stage where a bidder is deselected
The regular debrief can be requested any time a bidder (or potential bidder) is deselected, not just when the decision to award has been made. The contracting authority is obliged to tell the deselected bidder the reasons why it was unsuccessful (Regulation 32(9)(a) and those reasons must include, if applicable, the reasons why the bidder did not meet technical specification requirements (Regulation 32(10)).
Striking the right balance
A contracting authority will need to be careful not to disclose confidential information of the successful bidder. The contracting authority may withhold debriefing information in certain situations including where disclosure would be contrary to public interest, would prejudice the legitimate commercial interests of any bidder, or might prejudice fair competition (Regulation 32(13)).
Neither is there a duty to tell an unsuccessful bidder everything about the procurement process.
Having said that, the presumption is in favour of being open and transparent about the procurement process:
- Contracting authorities are subject to the general obligation to act in an open, fair and transparent manner in accordance with EU principles. The European Court of First Instance has held that the transparency principle requires that a bidder “must receive, without delay, precise information concerning the conduct of the entire procedure” (Embassy Limousine Services v European Parliament 1998 concerning a failure to tell Embassy that the decision to award the contract to them had been revoked leading Embassy to incur substantial set up costs);
- Quite substantial information should be given during debrief so that a well informed and diligent bidder can understand the “relative advantages and disadvantages of the respective bids” (Partenaire v Department of Finance and Personnel 2007);
- The purpose of the standstill period is to allow bidders to understand how the procurement has been conducted, including whether they have grounds to prevent the contract being awarded. Contracting authorities leave themselves open to criticism if they fail to respond to a reasonable request for information to allow a bidder to assess whether they have such grounds (Amaryllis Limited v HM Treasury 2009);
- However, contracting authorities have a certain amount of discretion in how to respond during the standstill (see McConnell Archive Storage v Belfast City Council 2008) and do not necessarily have to provide all information requested;
- Non-disclosure of a material fact during the standstill period could expose contracting authorities to a risk of an awarded contract being set aside.
Freedom of Information Requests
- Bidders (and others) are entitled to request wider information under the Freedom of Information Act 2000 (“FOIA”) than an authority is required to disclose under the debriefing obligations. Commercially sensitive information may be able to be withheld if it falls within one of the exemptions.
- A contracting authority has 20 working days from receipt of a FOIA request to respond.
- Face to face? Over the telephone? In writing?: There is no prescribed format for the debriefing. Bidders may have invested considerable funds and time into their bid, so a face to face meeting may be the most effective way to debrief a disappointed bidder. If so, an agenda may help to guide the conversation and a detailed written note should be kept.
- Be as open, accurate and transparent as possible:
The legal requirement is to disclose the criteria, score (though not scores in the plural) and relative characteristics and advantages. However, it is likely to be reasonable to disclose all scores achieved under each criteria and sub-criteria (if used).
- Focus on the relative strengths and weaknesses of the bid in question: As the requirement is to explain the relative strengths and weaknesses, reference should be made to the successful bid. The trick is to avoid being drawn into detailed discussion on the content of the successful bid. The aim should be to focus on the unsuccessful bid and explain where that bid was not as good. Of course the unsuccessful bid may have been better in some areas and contracting authorities can refer to those areas as well.
- Give as full reasons as possible: It is important to get the debriefing (including the information provided and the level of detail) right first time acting in an open manner and providing enough detail to satisfy the unsuccessful bidder. Bidders may wish to engage in further discussion and may ask further questions. It is important that these are answered consistently with the initial debrief.
- There is no obligation to talk about the merits of a decision: Contracting authorities should allow discussion on the process used, but not allow debate about whether the decision was made correctly as that is a matter for the contracting authority’s discretion.
- Allow it to be a two-way process if possible: A debriefing can be a useful opportunity to obtain feedback on how easy or inviting a bidder found it to participate in the process. Such feedback can help to improve the procurement process and encourage the authority to be seen as an attractive partner, encouraging other future bidders and leading to better Value For Money.
An open and transparent debriefing will allow an authority to learn more about any perceived flaws in the process and about the prospects of any legal challenge from a disgruntled bidder. This should help the authority to form a proper view of the risks entailed (if any) in proceeding to the next stage of the procurement process or contract award.
Ultimately, if the procurement has been run fairly and transparently in accordance with the rules, the debriefing should run smoothly and be beneficial to all parties.