Tender feedback
What you should receive back when bidding for public sector tenders has been very clear since 2009 (when Thornton & Lowe formed!).
When tendering for contracts with the public sector it is important to know your rights as a bidder. The public sector have to ensure they manage their procurement in a way which is open, fair and transparent and this means explaining or justifying contract awards and providing tender feedback.
Remedies Directive (2009):
Unsuccessful bidders had to be told how they scored based on the evaluation criteria in the tender. Including the reasons for the decision, including the characteristics and relative advantages of the winning bid and the scores obtained (if any) of the individual party receiving the notice and the winner of the contract or the party being awarded the framework.
This follows the principles of being, open, fair and transparent. However, there is still a 10 day standstill period to ensure you challenge any contract award if you feel you have not been treated fairly.
Procurement Act (2023)
Under the Procurement Act 2023, bidders are entitled to receive clear feedback through an "assessment summary" in competitive tenders. This document, mandated for both successful and unsuccessful bidders, serves as a critical tool for understanding the procurement outcome and the authority's evaluation of tenders.
Replacing the previous "award decision notification," the assessment summary is designed to address concerns regarding transparency and fairness in the bidding process. While the current rules ensure details such as scores and reasons for the decision and covered there was different interpretations of this. With the level of tender feedback varying, leading to debates between bidders and authorities during the standstill period.
The Procurement Act 2023 and Procurement Regulations confirm the requirements for tender feedback, including scores for each criterion, explanations based on tender content, assessments against sub-criteria, and total and sub-total scores. This formulation aims to align with existing practices, mitigating some challenges associated with previous approaches. See Chapter 5 of the legislation for further information, which focusses specifically on contract award notices and assessment summaries. However and in summary it includes:
- Contract Award Criteria - this section details the criteria used for awarding contracts, emphasising factors such as price, quality, and sustainability.
- Transparency Requirements - the legislation underscores the importance of transparency in procurement processes, requiring public sector authorities and utilities to adhere to transparent practices throughout the procurement lifecycle.
- Procedures for Awarding Contracts - the chapter outlines the procedures to be followed when awarding contracts, including requirements for advertising opportunities, evaluating bids, and notifying successful and unsuccessful bidders.
- Measures to Promote Fair Competition - it includes measures designed to promote fair competition, such as encouraging the participation of small and medium-sized enterprises (SMEs) and implementing measures to prevent anti-competitive behaviour.
- Evaluation and Scoring - the legislation provides guidance on how bids should be evaluated and scored, ensuring consistency and fairness in the assessment process.
- Standstill Period: it mandates a standstill period following the award of a contract, during which unsuccessful bidders can challenge the decision and seek feedback.
- Dispute Resolution Mechanisms - the chapter outlines mechanisms for resolving disputes that may arise during the procurement process, including procedures for appealing decisions made by contracting authorities.
- Compliance and Enforcement - lastly, the legislation establishes mechanisms for ensuring compliance with procurement regulations and outlines enforcement measures for addressing instances of non-compliance.
Interestingly, for example, for contracts exceeding £5 million awarded by public sector authorities and public utilities, the contract award notice will be required to disclose the identities of both the successful and unsuccessful bidders for the contract.
Tender feedback for high value tenders
It is important to note that these rules do only formally apply if the contract is classed as 'high value' in terms of procurement thresholds.
Low value tenders under the procurement thresholds, for service contracts this could be under £50k per annum as a guide, there are less rules in place. The process still needs to ran fairly and openly, however, the same clarity is not in place, meaning quite often the level of feedback provided for low value tenders is often less detailed, or harder to get from the buyer.
Challenging a procurement decision in 2024
In the event of being unsuccessful in a procurement exercise or contract decision, a bidder will face several steps to challenge the outcome.
- Firstly, they must adhere to the standstill period mandated by procurement regulations, during which they can seek feedback and consider their options
- If dissatisfied with the feedback or outcome, the bidder may initiate a formal challenge through legal channels. This typically involves filing a claim with the relevant authority or court within the specified timeframe
- The bidder must provide grounds for their challenge, citing breaches of procurement rules, lack of transparency, or unfair treatment
- Legal proceedings may entail hearings, evidence submissions, and deliberations, with decisions ultimately made by the adjudicating body. Successful challenges may result in contract termination, re-evaluation of bids, or compensation for the aggrieved bidder.
