ICEL Public Procurement Conference 2013

ICEL Public Procurement Conference 2013 – “The Duty to
Give Reasons, Standstill Letters and De-Briefs” – Focus on
Cormac Little, Partner, William Fry
Thursday February 7, 2013
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
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.
• A forum for discussing merits of the decision
• A forum for disclosing any new information not already in the
standstill letter
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
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
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
 Confidential information is not to be disclosed
• 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:
 providing a score with a comment such as “well described” was held to be too vague/generic
 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
• Being transparent and objective
Practical steps – for disgruntled unsuccessful
• 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