Procurement standstill letter feedback set to increase under new draft regulations

The first part of the consultation dealt primarily with issues that relate to the calculation of certain thresholds that would be relevant in determining whether the Act might apply or an exemption might be available. This second part deals primarily with the information that contracting authorities – that is, public bodies and regulated utilities – should include when publishing certain notices.

The government’s Part 2 consultation on the Procurement (Transparency) Regulations is open until 25 August 2023.

The draft regulations set out the information required to be published in notices and this is broadly unchanged from the equivalent notices under the current Public Contracts Regulations 2015 (PCR). Contract notices – now called tender notices – and contract award notices – now called contract details notices – will set out information about new and recently concluded procurement processes respectively, with no major changes. The content of other notices is similarly uncontroversial and in line with current requirements where there is an equivalent.

Arguably, the biggest proposed change relates to the amount of feedback that contracting authorities should be required to provide to bidders when informing them of the award decision.

When the Procurement Bill was first published many thought that the new law might in fact limit the amount of feedback that contracting authorities were obliged to provide to bidders when informing them of the award decision.  This was on the basis that the notification of the award decision, often referred to as the “standstill letter” under current procurement legislation, would be made by means of what is termed under the Bill as an “assessment summary”.

The publication of the draft regulations has now comprehensively dispelled that notion.

The draft regulations propose that contracting authorities should be required to provide each bidder who has submitted a tender with an assessment summary that contains “detailed reasons” for the score that bidder achieved in relation to each award criterion. This mirrors the current requirement in the PCR. However, according to the draft regulations, under the new law, contracting authorities should also have the obligation to provide the reasons why the bidder was not awarded a higher score, as well as an explanation of how the bidder was assessed against each of the different “strands” of an award criterion.

Although the term “strands” is not defined in the draft regulations, it is generally thought that this refers to sub-criteria and other elements against which a contracting authority would have evaluated a tender. Current legislation does not address expressly the question as to whether there is a need for contracting authorities to provide detailed, or indeed, any information as regards the evaluation of such other elements and practice amongst contracting authorities seems to vary. In truth, case law has long since established the need to provide such more detailed feedback where this is necessary, as it is in most cases, to enable each unsuccessful bidders to understand why its tender was unsuccessful and why the contracting authority’s award decision was well-founded. 

If the draft Regulations become law without substantive amendment on this point, contracting authorities will be legally required to provide to bidders much more detailed feedback than what at least some contracting authorities currently provide under existing rules. This should be welcomed as it increases transparency and legal certainty, albeit it highlights yet again the importance of ensuring that evaluators keep good records that explain the basis on which they have reached a view on the appropriateness of a particular score.

The draft regulations also require contracting authorities to provide all unsuccessful bidders with a copy of the feedback given to the successful bidder which, in another change from current requirements, would also involve explaining to the successful supplier, where relevant, why they did not score even higher in relation to any particular aspect of the evaluation.

Ultimately, useful as this might be in promoting further transparency, this requirement can also give rise to concerns in that it might lead inadvertently to the disclosure of the successful tenderer’s commercially sensitive and other confidential information to competitors.  Accordingly, this would require careful handling.

Finally, when the Procurement Bill was first published, it was widely noted that it removed the current requirement for contracting authorities to provide to unsuccessful bidders the “characteristics and relative advantages” of the successful tender, when notifying them of an award decision. However, given the detailed information that the draft regulations require contracting authorities to provide to bidders in the context of the “assessment summary” unsuccessful bidders should be in a position to determine the salient differences between their tender and the winning tender, as well as the relative advantages of the latter, where relevant.