The Office of Government Commerce ("OGC") and the Scottish Procurement Directorate ("SPD") have recently issued guidance to public bodies on how to implement a mandatory standstill period following a contract award decision.
The standstill would operate in the period between notifying all bidders of the contract award decision and concluding the contract with the successful bidder. This will allow aggrieved bidders the opportunity to prevent a contract being entered into if they believe there has been a breach of the procurement rules.
The introduction of the mandatory standstill period follows the Alcatel judgment (Case C-81/98). It also follows the issue of a Reasoned Opinion (which is the final stage in proceedings before a case is referred to the European Court of Justice) to the UK requiring compliance with the Alcatel judgment.
Regulations will formally be introduced under section 2(2) of the European Communities Act 1972. However, both the OGC and the SPD are stating that public bodies, to whom the procurement rules apply, should introduce the mandatory standstill period with immediate effect and should not wait until the regulations come into force.
The new standstill period applies to all public sector and utilities procurements covered by the EU Directives. The standstill period must be a period of not less than 10 calendar days between written communication of the award decision to all bidders and conclusion of the contract.
The standstill period begins the day after the notification of the award decision is given to all bidders and the notification must contain:
- The name of the winning bidder;
- The contract award criteria; and
- Where appropriate, the score the bidder obtained and the score the winning bidder obtained.
Additional debriefing information must be provided within the mandatory standstill period if an unsuccessful bidder requests it by the end of the second working day following commencement of the standstill period. In addition, a period of at least three working days must be given between providing the additional debriefing and the end of the standstill period. This may result in the standstill period being extended beyond the minimum ten calendar day period.
The introduction of this standstill period is likely to cause concern amongst public bodies and utilities who may be worried that aggrieved bidders will now be more likely to seek to challenge award decisions - which may in turn lead to delays.