If an unsuccessful bidder requests a debriefing, contracting
authorities are under a duty to give reasons for their
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
• the name of the successful bidder(s) (although this should
also have been given in the standstill letter) (Regulation
• the reasons why the bidder was unsuccessful (Regulation
• 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
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
- 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
- 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.