13 December 2012 | Victoria Moorcroft
How to ensure giving feedback stays within procurement rules.
Following a number of recent judgments looking at the obligation to provide a debrief, here’s how to ensure a compliant debriefing process:
1. Bidders in a regulated procurement process are entitled to a full written debrief.
2. The written debrief must always include the: (1) award criteria; (2) name of the successful bidder; (3) reasons for the decision including the score obtained by both the recipient and the successful bidder and the ‘characteristics and relative advantages’ of the successful tender; (4) date on which the standstill period is expected to end or before which the authority will not enter into the contract.
3. Although the regulations refer to providing ‘the score’, disclosing only a bidder’s total score is unlikely to be sufficiently transparent (see court report, February 2012). Good practice is to give the score against each award criterion and sub-criterion.
4. The letter must also contain a narrative describing the reasons for the decision, to justify why that particular score was given. Recent case law shows that reasons need not be long, but must be quite specific. For example, it is not sufficient to say a bidder gave little indication of understanding a specific element of the requirement, without explaining what evidence the authority was looking for.
5. The narrative must not just refer to the recipient’s tender, but must instead compare it with that of the successful bidder.
6. Always double-check the proposed debrief letter against the evaluation methodology that you provided with the ITT. Ensure the reasons for the decision correspond with factors disclosed as relevant in the ITT/evaluation methodology.
7. There is no requirement to provide a face-to-face debrief meeting for unsuccessful bidders.
8. Sometimes a face-to-face meeting can be the most useful way of providing feedback to bidders. When deciding whether to provide debrief meetings, weigh up these benefits with the risk of the information received being used to commence a legal challenge.
9. Consider waiting until after contract signature to provide a face-to-face debrief, when tempers have cooled.
10. Any face-to-face meeting must be managed carefully. Messages during the meeting must not contradict those in the debrief letter or evaluation methodology. Ensure those attending fully understand the legal nature of the meeting, that they have read and understood all the relevant documents and they are aware of any commercially sensitive aspects of the successful bidder’s solution (which should not be disclosed).
☛ Victoria Moorcroft is an associate at Bird & Bird