As soon as possible, after decisions have been reached about who is to be invited to tender or where participants are rejected and will not proceed to the next stage of the tender process, the contracting authority should:
- Advise each tenderer of the decision reached
- Provide, in writing, information of the reasons for rejection.
Where the decision is not to conclude the tender exercise, all participants should be advised accordingly. The communication should state the reasons why the contract has not been concluded.
Contract award stage – above threshold procurements only
A mandatory standstill period, must be applied between the decision of who to award the contract to and the formal award taking place.
The structured evaluation process followed when assessing the tenders will provide a framework upon which to base de-briefings.
Warning: under the standstill period, the unsuccessful tenderers and candidates are provided what could be viewed as a detailed, written debrief when the 'characteristics and relative advantages' of the winning tenderer(s) is provided as part of their standstill letter. It is critical that if an oral de-briefing is sought and given, that the conversation reflects accurately the contents of the standstill letter as variances in message could lead to legal challenge. It is important, therefore, that communications with unsuccessful candidates and tenderers are tightly managed.
The legislation does permit certain information to be withheld, and there may be provisions under the Freedom of Information Act that may prevent the disclosure of information.
On receipt of a request from a tenderer for a de-briefing concerned, the contracting authority shall, as quickly as possible and in any event within 15 days, inform:
- any eliminated tenderer of the reasons for rejection
- any unsuccessful tenderer of the reasons for its rejection including
- for aspects regarding technical specifications, the reasons for a decision of non-equivalence or where the works, supplies or services offered do not meet the performance or functional requirements
- any tenderer who has made an admissible tender, of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement.
- any tenderer that has made an admissible tender of the conduct and progress of negotiations and dialogue with tenderers.
This information shall be provided within 15 days of the written request for a de-briefing unless the mandatory standstill period applies (see above).
A contracting authority may withhold some of this information where the release of the information would
- impede law enforcement
- otherwise be contrary to the public interest
- prejudice the legitimate commercial interest of economic operators (suppliers), whether public or private, or might prejudice fair competition between them.
For further guidance see the OGC Guide on de-briefing , the Dickinson Dees Guide to the Art of Giving Reasons to Unsuccessful Bidders and the AoC Guide to Managing Supplier Debriefing.