Thursday February 7, 2013 ICEL Public Procurement Conference 2013 – “The Duty to Give Reasons, Standstill Letters and De-Briefs” – Focus on Debriefing Cormac Little, Partner, William Fry

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

Relevant Procurement Rules/Guidelines -The EU Remedies Directive -Reg. 6 of Public Sector Remedies Regulations S.I. No 130 of Reg. 6 of Utility Remedies Regulations S.I. No 131 of Reg. 68 of Defence Procurement Regulations S.I. No 62 of 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

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

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

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

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 Reg. 6 of both 2010 Remedies Regulations Reg. 68 of the Defence Procurement Regulations  Summary of reasons must be contained in the standstill letter.

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

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

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

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”…

Caselaw (cont’d) – 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 bidder’s price is higher  Information should be provided to unsuccessful tenderers to enable them to understand the “characteristics and relative advantages” of the successful bids

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

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

Questions & Answers WF v2