ICEL Public Procurement Conference 2013 – “The Duty to
Give Reasons, Standstill Letters and De-Briefs” – Focus on
Debriefing
Cormac Little, Partner, William Fry
Thursday February 7, 2013
Plan
Focus on period post-receipt of standstill letter
 What is debriefing in this context?
 What do Public Procurement Rules/Guidelines say?
 How to approach the debriefing process
 Practical steps
Relevant Procurement Rules/Guidelines
-
The EU Remedies Directive
Reg. 6 of Public Sector Remedies Regulations S.I. No 130 of 2010
Reg. 6 of Utility Remedies Regulations S.I. No 131 of 2010
Reg. 68 of Defence Procurement Regulations S.I. No 62 of 2012
Court Rules – Order 84A Rules of the Superior Courts (2010)
Department of Finance Guidelines a.k.a. Gold/Brown Book (revised
November 2010)
• Circular 10/10
- Case-law
What is it?
Department of Finance Circular 10/10
• “All contracting authorities should constructively de-brief
unsuccessful bidders in line with current policy and
guidelines and their obligations under revised Remedies
Directives”.
How do you “constructively debrief”?
•
•
Standstill letter setting out summary of reasons
Further debrief where required
Debriefing post-standstill letter
• A process that can be requested by an unsuccessful tenderer
seeking additional information after receipt of standstill letter
• A forum for expanding on relevant information in standstill
letter, for example strengths and weaknesses of a bid
• Voluntary practice
• Particularly pertinent where contract awarded on basis of most
economically advantageous tender.
IT IS NOT….
• A forum for discussing merits of the decision
• A forum for disclosing any new information not already in the
standstill letter
Rationale
Advantages for tenderers
• Illustrates that the process was conducted properly
• Enables understanding of the decision/public sector practices
• Helps improve future performance
Advantages for contracting authorities
•
•
•
•
Transparency
Promotes competition by encouraging better future bids
Identifies ways of improving the process
Could nip potential litigation in the bud
What has changed?
Period pre-introduction of 2010 Remedies Regulations
• No obligation to provide summary of reasons for rejection
in standstill letter
• Onus on unsuccessful tenderer to request “debrief”
Post- 2010
• Reg. 6 of both 2010 Remedies Regulations
• Reg. 68 of the Defence Procurement Regulations

Summary of reasons must be contained in the standstill
letter.
Current Guidelines
Department of Finance Guidelines (revised November 2010)
• Section 8 – “Voluntary Debriefing of Unsuccessful Tenderers”
 “…. it is good practice to adopt a voluntary constructive policy on
debriefing unsuccessful candidates”.
 “It is recommended that unsuccessful tenderers be given an objective
assessment of the comparative strengths and weaknesses, having due
regard to commercial sensitivity…”
 “process should address the (unsuccessful) offer against the evaluation
criteria
 Confidential information is not to be disclosed
So……
• Further debriefing after the standstill letter is not
mandatory but is advised by current guidelines.
• The possibility of having to devote time and resources
to this process will be reduced, if as much information
as possible is provided in the standstill letter
Debrief – How approach it?
• In writing
• By telephone
• At a special meeting
Depends on thresholds/ value of contract
• Smaller contracts
- Feedback via telephone usually sufficient
• Larger contracts (e.g. More than €25,000 for services/supplies)
- Debriefing meeting should be offered to all tenderers
- Standstill letter should include details of person to be contacted
about debriefing
Case-law (1) - European Dynamics – 9/9/2010
(Evropaiki Dynamiki v EC T300/07, T387/08, T63/06)
- Contracting authority provided “scores table” but no commentary/
reasons as to why preferred bidder obtained higher scores
- Court held information not sufficient and gave examples:
•
•
Insufficient
 providing a score with a comment such as “well described” was held to be too vague/generic
Sufficient
 providing a score followed by a statement such as
….“the tenderers approach is good, but not very good or excellent, and therefore a higher number
of points was not awarded. For example naming conventions are not mentioned, nor the difference
in approach with regard to technical and end-user documentation. The tenderer also failed to
explain how to handle the versioning of documentation”…
Caselaw (cont’d) – European Dynamics
(Evropaiki Dynamiki v EC T300/07, T387/08, T63/06)
Case shows:
 More comprehensive “debrief” required than provided for
in Irish rules
 Greater obligation to give information when preferred
bidder’s price is higher
 Information should be provided to unsuccessful tenderers
to enable them to understand the “characteristics and
relative advantages” of the successful bids
Practical steps – for contracting authorities
Avoid time consuming, costly debriefing process by:
• Pre-establishing clear evaluation criteria for award
• Applying criteria objectively in awarding contact
• Providing as much information in the standstill letter as
possible
• Being transparent and objective
Practical steps – for disgruntled unsuccessful
tenderer
• Challenging public sector contract decisions – tough
• Act swiftly – Time is of the essence
• 30 days to act from date of knowledge of cause of action (Court can
extend where “good reason” to do so)
• Ask questions – (Debrief!)
• Freedom of Information
• Create a paper trail
• Consider your preferred result and be realistic
• Remember - Courts will not “second guess” decision
Questions & Answers
WF-4816419 v2