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ICEL Public Procurement Conference 2013

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ICEL Public Procurement Conference 2013 The Duty to Give Reasons, Standstill Letters and De-Briefs Focus on Debriefing Cormac Little, Partner, William Fry – PowerPoint PPT presentation

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Title: ICEL Public Procurement Conference 2013


1
ICEL Public Procurement Conference 2013 The
Duty to Give Reasons, Standstill Letters and
De-Briefs Focus on Debriefing
  • Cormac Little, Partner, William Fry

2
Plan
  • Focus on period post-receipt of standstill letter
  • What is debriefing in this context?
  • What do Public Procurement Rules/Guidelines say?
  • How to approach the debriefing process
  • Practical steps

3
Relevant Procurement Rules/Guidelines
  • The EU Remedies Directive
  • Reg. 6 of Public Sector Remedies Regulations S.I.
    No 130 of 2010
  • Reg. 6 of Utility Remedies Regulations S.I. No
    131 of 2010
  • Reg. 68 of Defence Procurement Regulations S.I.
    No 62 of 2012
  • Court Rules Order 84A Rules of the Superior
    Courts (2010)
  • Department of Finance Guidelines a.k.a.
    Gold/Brown Book (revised November 2010)
  • Circular 10/10
  • Case-law

4
What is it?
  • Department of Finance Circular 10/10
  • All contracting authorities should
    constructively de-brief unsuccessful bidders in
    line with current policy and guidelines and their
    obligations under revised Remedies Directives.
  • How do you constructively debrief?
  • Standstill letter setting out summary of reasons
  • Further debrief where required

5
Debriefing post-standstill letter
  • A process that can be requested by an
    unsuccessful tenderer seeking additional
    information after receipt of standstill letter
  • A forum for expanding on relevant information in
    standstill letter, for example strengths and
    weaknesses of a bid
  • Voluntary practice
  • Particularly pertinent where contract awarded on
    basis of most economically advantageous tender.
  • IT IS NOT.
  • A forum for discussing merits of the decision
  • A forum for disclosing any new information not
    already in the standstill letter

6
Rationale
  • Advantages for tenderers
  • Illustrates that the process was conducted
    properly
  • Enables understanding of the decision/public
    sector practices
  • Helps improve future performance
  • Advantages for contracting authorities
  • Transparency
  • Promotes competition by encouraging better future
    bids
  • Identifies ways of improving the process
  • Could nip potential litigation in the bud

7
What has changed?
  • Period pre-introduction of 2010 Remedies
    Regulations
  • No obligation to provide summary of reasons for
    rejection in standstill letter
  • Onus on unsuccessful tenderer to request
    debrief
  • Post- 2010
  • Reg. 6 of both 2010 Remedies Regulations
  • Reg. 68 of the Defence Procurement Regulations
  • Summary of reasons must be contained in the
    standstill letter.

8
Current Guidelines
  • Department of Finance Guidelines (revised
    November 2010)
  • Section 8 Voluntary Debriefing of Unsuccessful
    Tenderers
  • . it is good practice to adopt a voluntary
    constructive policy on debriefing unsuccessful
    candidates.
  • It is recommended that unsuccessful tenderers be
    given an objective assessment of the comparative
    strengths and weaknesses, having due regard to
    commercial sensitivity
  • process should address the (unsuccessful) offer
    against the evaluation criteria
  • Confidential information is not to be disclosed

9
So
  • Further debriefing after the standstill letter is
    not mandatory but is advised by current
    guidelines.
  • The possibility of having to devote time and
    resources to this process will be reduced, if as
    much information as possible is provided in the
    standstill letter

10
Debrief How approach it?
  • In writing
  • By telephone
  • At a special meeting
  • Depends on thresholds/ value of contract
  • Smaller contracts
  • Feedback via telephone usually sufficient
  • Larger contracts (e.g. More than 25,000 for
    services/supplies)
  • Debriefing meeting should be offered to all
    tenderers
  • Standstill letter should include details of
    person to be contacted about debriefing

11
Case-law (1) - European Dynamics
9/9/2010(Evropaiki Dynamiki v EC T300/07,
T387/08, T63/06)
  • Contracting authority provided scores table but
    no commentary/ reasons as to why preferred bidder
    obtained higher scores
  • Court held information not sufficient and gave
    examples
  • Insufficient
  • providing a score with a comment such as well
    described was held to be too vague/generic
  • Sufficient
  • providing a score followed by a statement such as
  • .the tenderers approach is good, but not very
    good or excellent, and therefore a higher number
    of points was not awarded. For example naming
    conventions are not mentioned, nor the difference
    in approach with regard to technical and end-user
    documentation. The tenderer also failed to
    explain how to handle the versioning of
    documentation

12
Caselaw (contd) European Dynamics(Evropaiki
Dynamiki v EC T300/07, T387/08, T63/06)
  • Case shows
  • More comprehensive debrief required than
    provided for in Irish rules
  • Greater obligation to give information when
    preferred bidders price is higher
  • Information should be provided to unsuccessful
    tenderers to enable them to understand the
    characteristics and relative advantages of the
    successful bids

13
Practical steps for contracting authorities
  • Avoid time consuming, costly debriefing process
    by
  • Pre-establishing clear evaluation criteria for
    award
  • Applying criteria objectively in awarding contact
  • Providing as much information in the standstill
    letter as possible
  • Being transparent and objective

14
Practical steps for disgruntled unsuccessful
tenderer
  • Challenging public sector contract decisions
    tough
  • Act swiftly Time is of the essence
  • 30 days to act from date of knowledge of cause of
    action (Court can extend where good reason to
    do so)
  • Ask questions (Debrief!)
  • Freedom of Information
  • Create a paper trail
  • Consider your preferred result and be realistic
  • Remember - Courts will not second guess
    decision

15
Questions Answers WF-4816419 v2
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