PROCUREMENT GUIDANCE NOTE: MANDATORY CONTRACT STANDSTILL PERIOD
[European Court of Justice’s (ECJ) Alcatel Judgment (C-91/980)]
Date of Publication: 16 September 2005
Date of Update: 10 June 2010 (R. Valentine)
Author: Kathy Hill, Purchasing Co-ordinator
Contact: K.A.Hill@exeter.ac.uk, Tel. 01392 263104 / 01392 263672 (R. Valentine 01392 726117)
____________________________________________________________________________________________________________
Incorporating the Remedies Directive - implemented into UK legislation by The Public Contracts (Amendment) Regulations 2009 (the “Regulations”)1. The Regulations apply to tender processes commenced on or
after 20 December 2009.
1. INTRODUCTION
1.1 Procedure
This guidance sets out the procedure to be adhered to by all staff for notifying tenderers of contract award
decisions for contracts at or above the relevant E.U. tender thresholds. The current thresholds are published
in the University’s Financial Handbook, which is accessible via the University’s intranet.
The guidance is based on advice received from the Office of Government Commerce and is to be adopted
with immediate effect. New procedures (such as the Remedies Directive) have arisen from negotiations
between the UK government and the European Commission concerning the length and scope of the mandatory standstill period, the requirements relating to the process of notifying all tenderers of the contract award
decision at the beginning of the standstill period and the new debriefing requirements during the standstill
period.
1.2 What is the standstill period?
In order to allow suppliers to challenge effectively in court any decision made under the regulations, a purchaser is required to notify all suppliers involved in a procurement process of its decision as to which supplier has ‘won’ the competition. This notification, which can lead to further requests for relevant information,
provides ‘non-winning’ suppliers with information to allow them to challenge the decision in court. To allow
the court full discretion in applying legal remedies, the purchaser is not permitted to conclude a contract with
the ‘winning’ supplier until a period of at least ten (10) calendar days has elapsed, from the date on which
suppliers are advised of the decision.
2. SUMMARY OF MAIN POINTS
2.1 Mandatory Standstill Period
A minimum of ten (10) days’ Mandatory Standstill Period must be observed between communicating the
award decision to all tenderers and the contract conclusion (signing off of the contract documents, purchase
order etc.).
The standstill period should be:
 extended if necessary e.g. around public holidays or to comply with individual requirements of the project;
 the 10-day countdown commences the day after the award decision is issued to all tenderers;
 the Mandatory Standstill Period must end on a working day.
A contract cannot be concluded with the winning supplier until at least the eleventh (11th) calendar day at the
earliest following notification. This would not prevent continuing discussions with the ‘winning’ supplier (e.g.
to ensure prompt mobilisation of the supplier’s resources once a contract was concluded).
University staff should take special care in calculating the minimum standstill period - for example the standstill period must be extended to the next working day if it would otherwise fall on a non-working day.
The University must provide the relevant information by the quickest means available, as soon as possible
after the award decision has been made and shall do so by the most rapid means of communication practicable.
2.2 Exclusion to the Standstill Period
The mandatory standstill period does not apply to:
 contracts and purchase orders whose total value excluding VAT is below the E.U. tender thresholds
 procurements outside the full scope of the E.U. Procurement Directives
 where single tendering occurs under the ‘Urgency’ provision of the Negotiated Procedure
Page 1
11 June 2010
PROCUREMENT GUIDANCE NOTE: MANDATORY CONTRACT STANDSTILL PERIOD
[European Court of Justice’s (ECJ) Alcatel Judgment (C-91/980)]
Date of Publication: 16 September 2005
Date of Update: 10 June 2010 (R. Valentine)
Author: Kathy Hill, Purchasing Co-ordinator
Contact: K.A.Hill@exeter.ac.uk, Tel. 01392 263104 / 01392 263672 (R. Valentine 01392 726117)
____________________________________________________________________________________________________________
3. NEW PROCEDURES (from December 2009)
3.1 The Mandatory Standstill Period and the effects of Remedies Directive
The Remedies Directive (which came into force on 20th December 2010) makes provision for a number of
changes to the current regime, but by far the most important is the introduction of a new remedy of ineffectiveness.
Under previous legislation, the only remedy available for the disgruntled bidder was damages. At present,
it is a well established general principle that once a contract has been awarded, it cannot be set aside by the
courts, even where they find a breach of the procurement rules… this is no longer the case.
Under the new Remedies Directive, in certain circumstances, the courts will be able to render such contracts ineffective by ordering their cancellation. In addition, the court must impose a fine (or, as it is termed, a
Civil Financial Penalty) on the contracting authority. Limited discretion is given to the courts to make such an
order, but if it does, it must make an alternative penalty, which could be a shortening of the contract or a fine.
As well as introducing the new remedy of ineffectiveness, the Directive has brought about technical changes to the mandatory standstill requirements. The most significant of these is the removal of the ‘accelerated’ debrief provision in the old rules and its replacement with the obligation to serve a fuller statement of
reasons for the decision as part of the initial notice.
Additionally, the new Regulations make it explicit that the contracting authority cannot enter into the contract
if it has not met its Mandatory Standstill obligations or if the award has been challenged.
3.2 New Debriefing Rules
From immediate effect, to mitigate risk under the Remedies Directive, University staff must now provide
significantly more information up front in the Standstill Notice than previously (subject to the limits of
commercially confidential information) to minimise the risk of a complainant arguing that a Standstill Notice is
not effective. Tenderers can expect, in that Standstill Notice, a full statement of reasons including:







the award criteria (should indicate weightings);
the tenderer’s score;
the winning tenderer’s score;
the name of the winning tenderer;
the characteristics and advantages of the successful bid;
a detailed breakdown of the scoring for successful bidders and for individual unsuccessful
bidders, and;
the date when the standstill period is expected to end.
Under the new Mandatory Standstill requirements there is no longer a requirement for an ‘accelerated’
debriefing during the standstill period (although the requirement to give relevant reasons when notifying the
award decision remains). There must be an automatic suspension of the award procedure if an economic
operator appeals against the award decision.
3.3 The Standstill Notice
The Standstill Notice must be followed by a Contract Award Notice. A template is attached at Appendix 2 for
use by university staff. Much of this information can be gleaned from the evaluation and in keeping with the
criteria set out in the ITT.
NB: The time limits, or risk period, for ineffectiveness can be reduced from the default position of 6-months
following contract award, to 30 days, if the contracting authority has published a Contract Award Notice in
the Official Journal of the EU.
3.4 Legal Challenge
If there is a legal challenge to a contract award decision, the University (& staff) should wait to see if ‘Interim
Measures’ are granted before proceeding.
Page 2
11 June 2010
PROCUREMENT GUIDANCE NOTE: MANDATORY CONTRACT STANDSTILL PERIOD
[European Court of Justice’s (ECJ) Alcatel Judgment (C-91/980)]
Date of Publication: 16 September 2005
Date of Update: 10 June 2010 (R. Valentine)
Author: Kathy Hill, Purchasing Co-ordinator
Contact: K.A.Hill@exeter.ac.uk, Tel. 01392 263104 / 01392 263672 (R. Valentine 01392 726117)
____________________________________________________________________________________________________________
If Interim Measures are granted, the university (and staff) should wait until the outcome of the legal proceedings is known before concluding the contract.
3.5 Limitation periods
Under the old regulations, a complainant was required to bring a challenge under the procurement rules
within three months of the date of the alleged breach and in any event "promptly".
Under the new mandatory standstill requirements the supplier must now notify the University of the alleged breach and intention to bring proceedings. An application to the High Court must be made promptly
and within 3 months of the grounds arising, (unless the Courts allow longer). Legal precedence currently insists that the three month period is calculated from the time when a complainant was aware, or should
have reasonably been aware, of the nature of the breach.
This general 3 month time remains the starting point but, where the remedy of ineffectiveness is sought,
there are special time limits. The default position is that proceedings seeking a declaration of ineffectiveness
must be started within 6 months of the contract award. It is important to note that, in the vast majority of circumstances, the reduced time limits can be achieved by notifying suppliers that the contract has been
awarded in the way and for the reasons that had been given in the Standstill Notice.
3.6 VEAT
In circumstances where there has been no OJEU contract notice, and the contract is covered by the full
scope of the procurement rules (e.g. negotiated procedures without competition, or above-threshold
contract variations) there is also an opportunity to shorten the ineffectiveness time limit to 30 days by use
of the "Voluntary Ex Ante Transparency" (VEAT) notice
The completion of a VEAT notice effectively provides an opportunity for suppliers to challenge the contracting authority’s decision to award the contract without prior publication of a notice, before the contract is
awarded and disengages the ineffectiveness remedy.
The main difference between the VEAT notices to a normal standstill period is that the form has to be completed and published in the Official Journal of the European Union (OJEU) before the contract is awarded,
and then a 10-day period follows that publication date. If no challenges are brought during that 10-day period, the contract can be awarded, with the ineffectiveness remedy disengaged.
The VEAT notice itself is modelled on the Contract Award Notice and so will seem familiar to procurement
staff, but the main difference is that only a limited number of fields need completing on the VEAT form.
These mandatory fields are explained on the first page of the VEAT form
3.7 Mitigating risk
The Regulations and OGC Guidance on the Regulations helpfully provide contracting authorities with a
number of ways of mitigating risk. However early identification of potential issues is crucial to enable mitigating steps to be taken: http://www.ogc.gov.uk/
4. FURTHER ADVICE
Help with the interpretation and implementation of this new procedure is available from Kathy Hill, Purchasing Coordinator (or Bob Valentine Senior Contracts’ Officer: Procurement Team). Contact details as shown
in ‘header’ above. The following Appendices contain a flowchart (App1) and a MSP template (App2).
Date Issued to Tenderers:
Signed:
Position:
Contact Details:
Page 3
11 June 2010
PROCUREMENT GUIDANCE NOTE: MANDATORY CONTRACT STANDSTILL PERIOD
[European Court of Justice’s (ECJ) Alcatel Judgment (C-91/980)]
Date of Publication: 16 September 2005
Date of Update: 10 June 2010 (R. Valentine)
Author: Kathy Hill, Purchasing Co-ordinator
Contact: K.A.Hill@exeter.ac.uk, Tel. 01392 263104 / 01392 263672 (R. Valentine 01392 726117)
____________________________________________________________________________________________________________
Appendix 1
Flowchart/Timetable of Standstill Period (10 Calendar Days)
Evaluate tenders and decide upon ‘winner’
.
Notify all suppliers of award decision.
Provide a Standstill Notice (refer to 3.3)
Standstill period starts the day after
notification is sent (refer to 2.1)
Notifying the tenderers and candidates of
the conclusion of the contract, and providing the reasons for the decision with the
notification via the Standstill Notice (refer to
3.3)
.
Standstill period
10 days minimum.
If there is a legal challenge to a contract
award decision - wait to see if ‘Interim
Measures’ are granted before proceeding
with award of Contract (refer to 3.4)
Bidders can expect a full
statement of reasons for
the decision to award a
contract (refer to 3.2)
End of Standstill period
- taking into account Public Holidays,
weekday calculations etc. (refer to 2.1)
If Interim Measures are granted, the university (and staff) should wait until the outcome of the legal proceedings is known
before concluding the contract award.
The supplier must notify the purchaser of the alleged breach and
intention to bring proceedings
promptly and within 3 months of the
grounds arising (6months for ineffectiveness unless). (refer to 3.4)
NB: University must provide de-briefing information ‘up front’ and in the Mandatory Standstill
Notice letter (below).
Page 4
11 June 2010
PROCUREMENT GUIDANCE NOTE: MANDATORY CONTRACT STANDSTILL PERIOD
[European Court of Justice’s (ECJ) Alcatel Judgment (C-91/980)]
Date of Publication: 16 September 2005
Date of Update: 10 June 2010 (R. Valentine)
Author: Kathy Hill, Purchasing Co-ordinator
Contact: K.A.Hill@exeter.ac.uk, Tel. 01392 263104 / 01392 263672 (R. Valentine 01392 726117)
____________________________________________________________________________________________________________
Appendix 2 - MANDATORY STANDSTILL NOTICE TEMPLATE
(items in blue need input)
??? SERVICES
??? Ser vi ces
Address
Exeter
EX4 ???
Telephone: +44 (0)1392 72 ????
Email: ???@exeter.ac.uk
http://admin.??????
To:
??th ???? 20??
Tender for ??? (Ref: UOE/????/???)
Thank you for participating in the tender procedure for the above project. The University has now evaluated
all of the tenders it received. The University has chosen to/not to award a contract to you.
The University will now observe a ten day standstill period before entering into any contract in accordance
with the requirements of regulation 32 of the Public Contracts Regulations 2006 as follows:
1. MANDATORY STANDSTILL NOTICE
What is a Mandatory Standstill Notice?
A ‘public body’ purchaser is required to notify suppliers involved in a procurement process of its decision
as to which supplier has ‘won’ the competition. This letter constitutes the Mandatory Standstill Notice
within the requirements of regulation 32 of the Public Contracts Regulations 2006.
Mandatory Standstill Period
A minimum of ten (10) days’ Mandatory Standstill Period must be observed between communicating
the award decision to all tenderers and the contract conclusion (signing off of the contract documents,
purchase order etc.).
A contract cannot be concluded with the winning supplier until at least the eleventh (11th) calendar day at
the earliest following notification. This would not prevent continuing discussions with the ‘winning’ supplier
to ensure prompt mobilisation of the supplier’s resources once a contract was concluded.
What Tenderers can expect
Tenderers can expect, in this Standstill Notice, a statement of reasons including:







the award criteria (with weightings);
the tenderer’s score;
the winning tenderer’s score;
the name of the winning tenderer;
the characteristics and advantages of the successful bid;
a detailed breakdown of the scoring for successful bidders and for individual unsuccessful bidders, and;
the date when the standstill period is expected to end.
Page 5
11 June 2010
PROCUREMENT GUIDANCE NOTE: MANDATORY CONTRACT STANDSTILL PERIOD
[European Court of Justice’s (ECJ) Alcatel Judgment (C-91/980)]
Date of Publication: 16 September 2005
Date of Update: 10 June 2010 (R. Valentine)
Author: Kathy Hill, Purchasing Co-ordinator
Contact: K.A.Hill@exeter.ac.uk, Tel. 01392 263104 / 01392 263672 (R. Valentine 01392 726117)
____________________________________________________________________________________________________________
2.
MANDATORY STANDSTILL NOTICE - INFORMATION
The results of the evaluation process used by the University for this tender are shown below.
AWARD DETAILS
Name of Tenderer
Name of Winning Tenderer
Name of Contract
Insert name of tenderer
Insert name of winning tenderer
??? - Ref. UOE/20??/????
Contract Duration
Insert relevant information here
Date Mandatory Standstill Period Ends
Insert 10 days after you expect tenderer to receive this
letter
Extract information from your evaluation/evaluation matrix to populate data below
CONTRACT AWARD CRITERIA
Maximum
Score
Award Criteria
Score
Your
Weighted
Score
Successful
Bidder’s
Weighted
Score
??
??
??
??
??
??
??
??
??
??
??
??
??
??
??
Insert from the ITT
e.g. Specification of Requirements
e.g. Price
e.g. Presentations
TOTALS
100%
NOTE: The score results stated on this document relate to the specific tender procedure followed for the
stated project and consequently not all of the tables shown may contain data. However; a comprehensive
breakdown must be made available to tenderers.
CHARACTERISTICS AND ADVANTAGES OF THE SUCCESSFUL BID
Insert here – be as helpful as you can to help supplier improve any future bid – without giving anything
commercially sensitive away. Concentrate on what you expected to see in the response – including
(but no exclusively) level of detail, addressing the specification/outputs, clarity and relevance.
The University can provide a more detailed debrief should you request it by contacting the University via InTend.
Thank you for your interest in this procurement and we hope you will apply to tender for future contracts to
be let by the University.
or
We look forward to working with you on this project /procurement.
Yours sincerely
Name & Title
Page 6
11 June 2010