Standstill Period: Cooling-Off Phase in Tender

Overview of the Standstill Period

The standstill period is a key phase in public procurement and tendering. It provides a brief pause between contract award notification and final contract conclusion.

During this time, suppliers (bidders) have the opportunity to challenge the contracting authority's decision if they believe there are grounds to do so. Or it is also simply a chance to ensure you have been treated fairly.

The standstill period lasts for 10 calendar days (changing to a minimum of 8 working days as part of the Procurement Act). It begins when the contracting authority notifies all bidders of their award decision.

For contracts covered by the Procurement Act this pause is mandatory. It applies to contracts above certain thresholds, including those under the light touch regime.

The standstill period serves several important purposes:

• Allows unsuccessful bidders to review the award decision
• Provides time for requesting feedback on unsuccessful bids
• Enables legal challenges to be raised before contract signing

Legal Framework and Regulation

The legal framework for standstill periods in procurement is governed by key regulations and directives. These establish mandatory waiting periods between contract award decisions and final contract signing.

Public Contracts Regulations 2015

The Public Contracts Regulations 2015 mandate a standstill period of at least 10 calendar days for contracts above certain thresholds. This pause allows unsuccessful bidders to challenge award decisions before contracts are finalised.

Regulation 87 prohibits contracting authorities from entering into contracts before the standstill period ends. For electronic notifications, the period ends at midnight on the 10th day after notice is sent.

The regulations apply to all contracts covered by Part 2, including over-threshold light touch regime contracts. In urgent cases, authorities must weigh risks against proceeding without a standstill.

Procurement Act 2023

The Procurement Act 2023 introduces changes to UK procurement rules post-Brexit. It maintains the requirement for standstill periods but clarification is provided on the days with a change to 8 working days as a minimum.

The Act permits shorter standstill periods for some contracts, particularly in cases of genuine urgency. It also clarifies when standstill periods can be waived entirely, such as for certain defence contracts.

Under the new rules, you must still provide detailed feedback to unsuccessful bidders during the standstill period. This helps ensure transparency and allows suppliers to decide whether to challenge decisions.

European Court of Justice Directives

European Court of Justice (ECJ) directives continue to influence UK procurement law, despite Brexit. The ECJ has ruled that standstill periods are crucial for effective remedies in procurement.

Key ECJ decisions have emphasised that standstill periods must be long enough to allow meaningful review. The court has also clarified when a 'declaration of ineffectiveness' can be issued for contracts signed without proper standstill.

You should be aware that ECJ rulings may still be referred to in UK courts when interpreting procurement regulations, particularly for contracts predating Brexit.

The Tendering Process and Standstill

The tendering process involves several key stages, culminating in the standstill period before contract award. This process ensures fairness and transparency in public procurement.

Issuance of Contract Notice

The contracting authority begins by publishing a contract notice. This document outlines the requirements, specifications, and evaluation criteria for the tender. It also includes important dates and deadlines for submission.

You'll find the contract notice on official procurement portals or websites. It's crucial to review this document carefully, as it forms the basis of your tender submission.

The notice may include:

• Project scope
• Eligibility criteria
• Submission instructions
• Timelines
• Contact information for queries

Submission of Tenders

Once the contract notice is issued, you can prepare and submit your tender. This stage requires careful attention to detail and adherence to the specified requirements.

Your tender should include:

• Detailed proposal
• Pricing information
• Supporting documents
• Completed forms

Ensure you submit your tender before the deadline. Late submissions are typically rejected without consideration.

Many contracting authorities now use electronic submission systems. These platforms often have specific formatting and file size requirements.

Evaluation of Tenders

After the submission deadline, the contracting authority evaluates all received tenders. This process involves assessing each tender against the predetermined criteria outlined in the contract notice.

Evaluation criteria may include:

• Technical compliance
• Price
• Quality
• Delivery timelines
• Past performance

The evaluation team scores each tender objectively. They may seek clarifications from tenderers during this stage.

It's important to note that you cannot make substantial changes to your tender after submission. Only minor clarifications are permitted.

Award Decision and Notification

Once the evaluation is complete, the contracting authority selects the successful tenderer. They then issue an award decision notice to all participants.

This notice includes:

• Name of the successful tenderer
• Reasons for the decision
• Characteristics and advantages of the winning tender
• Start date of the standstill period

The standstill period begins immediately after this notification. It lasts at least 10 calendar days when sent electronically.

During this time, you can request feedback on your tender if unsuccessful. The contracting authority must provide this within 15 days of receiving your request.

The standstill period allows for any challenges to the decision before the contract is formally awarded. No contract can be signed until this period ends.

Preparing for the Standstill Period

To prepare for the standstill period, you need to take several key steps. First, calculate the exact duration using a standstill period calculator. This ensures you comply with the minimum 10 calendar day requirement.

Next, draft your standstill notice. This document informs all tenderers of the contract award decision. Include clear reasons for selecting the winning bid and rejecting others.

Prepare a comprehensive standstill letter for unsuccessful tenderers. Provide detailed feedback on their bids and explain why they weren't chosen. This helps prevent potential challenges during the standstill period.

Ensure all communication is sent via electronic means to expedite the process. Remember, the clock starts ticking when the last notice is sent.

Set up internal systems to prevent premature contract signing. Brief your team on the importance of waiting until the standstill period ends before finalising any agreements.

Be ready to respond promptly to any queries from unsuccessful tenderers. Have relevant documentation on hand to address potential concerns quickly and transparently.

Rights and Responsibilities During Standstill

The standstill period involves specific rights and obligations for all parties involved in the procurement process. This time allows for transparency and fairness in contract awards.

Unsuccessful Tenderers' Rights

Unsuccessful tenderers have the right to receive a contract award notice detailing why their bid was not chosen. You are entitled to request a debriefing from the contracting authority to understand the strengths and weaknesses of your tender.

This feedback can be invaluable for improving future bids. You have the right to challenge the decision if you believe proper procedures weren't followed. It's advisable to seek legal advice promptly if considering a challenge, as the standstill period is limited.

Contracting Authorities' Obligations

As a contracting authority, you must provide clear, written notifications to all tenderers about the award decision. These notices should include the award criteria, the successful bidder's name, and the reasons for selection.

You're obligated to offer debriefings if requested. It's crucial to maintain detailed records of the evaluation process. You must not finalise the contract until the standstill period ends. Be prepared to respond to any queries or challenges from unsuccessful bidders promptly and thoroughly.

Successful Bidder's Position

As the successful bidder, you should receive notification of your selection. While this is positive news, remember the contract isn't finalised until after the standstill period.

You may be asked to provide additional information or clarifications during this time. It's wise to start preparing for contract implementation but avoid making firm commitments. Be aware that unsuccessful bidders might challenge the decision, which could potentially affect the outcome.

Calculating the Standstill Duration

Determining the correct standstill period is crucial for procurement processes. You can use a standstill period calculator to simplify this task.

These calculators typically ask for the date you sent the award decision notice. They then factor in working days, excluding public holidays.

Most standstill periods last 10 calendar days, including weekends. However, the Procurement Act 2023 introduced an 8 working day period for some contracts.

When using a calculator, ensure it's up-to-date with current regulations. The Crown Commercial Service offers guidance on standstill periods.

Remember to consider bank holidays in your calculations. These vary across the UK, so check the specific dates for your region.

If the standstill period ends on a non-working day, it's often extended to the next working day. This ensures fairness for all parties involved.

Some calculators provide additional information, such as the earliest date you can sign the contract. This helps prevent any accidental breaches of the standstill period.

Always double-check your calculations, even when using a tool. It's your responsibility to ensure compliance with procurement regulations.

Legal Recourse and Remedies

The standstill period provides unsuccessful bidders with opportunities to challenge contract award decisions and seek legal remedies. Bidders have several options for addressing perceived unfairness or errors in the procurement process.

Challenging the Award Decision

You can challenge the award decision by filing a formal legal claim within the standstill period. This prevents the contracting authority from finalising the contract until a court reviews the case. To succeed, you must demonstrate that the authority breached procurement regulations in a way that affected the outcome.

Common grounds for challenge include:

• Incorrect application of award criteria
• Failure to follow stated evaluation processes
• Unequal treatment of bidders
• Lack of transparency

The court may order the authority to re-run parts of the procurement or set aside the award decision entirely.

Seeking Damages

If you suffer financial loss due to a breach of procurement rules, you can seek damages through the courts. You must prove:

1. A breach occurred
2. The breach caused you loss
3. The loss was foreseeable

Damages typically cover bid preparation costs and lost profits. The exact amount depends on your likelihood of winning the contract absent the breach. Proving this can be challenging, so thorough documentation is crucial.

Ineffectiveness and Procedural Rigour

In serious cases, you may petition for a 'declaration of ineffectiveness'. This nullifies contracts already signed if:

• No contract award notice was published
• The standstill period was not observed
• There was a breach of the automatic suspension rules

Courts can also impose financial penalties on contracting authorities. These remedies underscore the importance of procedural rigour in public procurement. Authorities must strictly adhere to standstill requirements to avoid costly legal consequences.

Risk Management for Contracting Authorities

Applying a voluntary standstill period can be a crucial risk management strategy for you as a contracting authority. This period helps shield you from potential ineffectiveness claims and other post-contractual remedies.

When awarding contracts or framework agreements, you should consider sending a standstill notice, often referred to as an Alcatel letter. This notice informs bidders of your decision and initiates the standstill period.

By observing this period, you safeguard against the risk of contracts being set aside. It's particularly important for high-value or complex procurements where legal challenges are more likely.

During the standstill, unsuccessful bidders have the opportunity to challenge your decision before the contract is signed. This can help you avoid the costly scenario of paying both the successful bidder and damages to an unsuccessful one.

If a bidder issues court proceedings within the standstill period, an automatic suspension prevents you from awarding the contract. You may need to apply to court to lift this suspension.

To ensure compliance, maintain clear communication with all bidders throughout the process. Keep detailed records of your decision-making and evaluation processes to justify your choices if challenged.

Remember, while the standstill period may delay contract award, it offers valuable protection against potential legal and financial risks in the long term.

Electronic Tools and Support Resources

Several electronic tools can assist you during the standstill period. The Find a Tender service is a key resource for accessing contract notices and awards in the UK public sector.

You can use a standstill calculator to determine the exact end date and time of the standstill period. This ensures compliance with the mandatory waiting time before contract award.

For procurement exercises, online platforms often provide built-in features to manage the standstill process. These may include automated notifications and document sharing capabilities.

E-procurement systems can help you track timelines, send standstill notices, and maintain records of communications with bidders. Many offer templates for standstill letters to ensure all required information is included.

Some tools integrate with contract management software, allowing for a smooth transition from the standstill period to contract execution. This can help prevent delays in the procurement cycle.

Remember to check that any electronic tools you use comply with UK procurement regulations and data protection laws. Secure, auditable systems are essential for maintaining the integrity of the procurement process.

Beyond the Standstill: Ensuring Compliance

After the standstill period concludes, compliance remains crucial. You must issue contract award notices promptly. These notices inform all tenderers of the successful bid outcome.

For call-off contracts, whilst a standstill isn't mandatory, voluntary compliance offers protection. It safeguards against potential legal challenges from unsuccessful economic operators.

Ensure your technical specifications align with the awarded contract. Any deviations could breach procurement regulations and invite scrutiny.

The Alcatel case established the standstill period's importance. It emphasised giving unsuccessful bidders time to seek remedies if dissatisfied with the process.

Keep detailed records of your procurement decisions. This includes evaluation criteria, scoring, and reasons for selecting the successful tender. Transparency is key to demonstrating fair treatment of all bidders.

Consider debriefing unsuccessful tenderers. Whilst not always required, it can provide valuable feedback and reduce the likelihood of challenges.

Compliance doesn't end with contract award. Ongoing contract management is essential to ensure the agreed terms and specifications are met throughout the contract's duration.