1. Construction Law | Dispute Resolution | Procurement | Training
Records, Giving Reasons & Debriefing
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Quigg Golden

2. Here Today Edward Quigg
BEng LLB LLM PGDipArb MIEI FCIArb FCInstCES MCIPS
Solicitor / Director

3. What we do Construction Law Procurement Law
JCT, NEC, FIDIC, PWC contract advice/drafting
Procurement Law
Strategy, bid support, training, challenges
Dispute Avoidance & Resolution
Conciliation/Mediation
Adjudication
Arbitration
Project Management
What we do
CWMF Training (Pilot Scheme)

4. Agenda Drafting compliant debrief letters Records and reporting
How to give reasons and debrief bidders
Writing the perfect Dear John letters
How much information do I need to give?
Records and reporting
Regulation 84 Reports
Evaluation records

6. Why?
Roche Diagnostics Limited v Mid Yorkshire NHS Trust [2013] EWHC 933: “An unsuccessful tenderer who wishes to challenge the evaluation process is in a uniquely difficult position. He knows that he has lost, but the reasons for his failure are within the peculiar knowledge of the public authority…the challenger ought to be provided promptly with the essential information and documentation relating to the evaluation process actually carried out, so that an informed view can be taken of its fairness and legality”

7. Informing Candidates and Tenderers
Reg 55(1) = CA shall inform each candidate and tenderer of a decision reached
Reg 55(2) = CA shall as soon as possible but no later than 15 days following the receipt of a request in writing inform:
Candidates = reasons for rejection
Unsuccessful tenderer = reasons for rejection, non-equivalence/does not meet functional requirements
Admissible tender = characteristics and relative advantages of successful tenderer, name of successful tenderer and progress of negotiations/dialogue (if applicable)

8. Informing Candidates and Tenderers
Reg 55(3) – CA may withhold information if it would:
Impeded law enforcement/contrary to public interest;
Prejudice commercial interests of economic operator; or
Prejudice fair competition.

9. Informing Candidates and Tenderers
That’s what Regulation 55 of the European Union (Award of Public Authority Contracts) Regulations 2016 says…
Regulation 6 of S.I. No. 130/ European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010 (“the Remedy Regulations”) goes further….

10. What information must be given to Candidates?
23 May 2011
What information must be given to Candidates?
A Regulation 6 notice for a Candidate must contain:
Decisions Reached
Exact Standstill
Not “14 days from the date of this notice”
Best to say “The standstill period for the purpose of regulation 6 will expire at midnight on 17 January 2019”
A summary of the reasons for the rejection of the candidate (scores)
Not characteristics or relative advantages of successful candidates
Hughes McMichael NEC3 Overview

11. What information must be given to Tenderers?
A Regulation 6 notice for a Tenderer must contain:
Decisions Reached
Exact Standstill
A summary of the reasons for the rejection of the Tenderer (scores)
For an Admissible Tender the notice must further contain:
Characteristics and relative advantages of the selected tender
The name of the successful tenderer
A statement as to why solutions proposed are deemed not equivalent
(if relevant)
Are scores sufficient reasons?
Admissible tender = a tender that qualifies for evaluation under the rules of the relevant tender process
The standstill period starts of the day after the day on which the notification is sent. The purpose of a standstill period is to allow for effective pre contract remedy to disappointed tenderers and the contracting authority may not conclude a contract with an identified preferred bidder during this time.

12. Debriefing a Tenderer Identify the MEAT Standstill Period
IMPORTANT BIT!
* Extract from Model Letter 6,
Public Procurement Guidelines for
Goods and Services

13. Are these reasons sufficient?
Debriefing
Are these reasons sufficient?
Award Criteria
Characteristics and Relative Advantages A1
Your response to this criterion was of a good standard. However, compared to the successful tenderer, it lacks sufficient specific details on new studies and reports that would be required going forward A2
Your response to this criterion was of a very good standard however, the successful tenderer provided more relevant and specific experience/lessons learned in recent public works contracts

14. Debriefing RPS v Kildare County Council (2016)
Mr Justice Humphreys not impressed
“a flimsy and threadbare attempt to explain the decision”
“a bland, anodyne, bureaucratic, uninformative formula”

15. Debriefing – The Humphrey Standard
Reasons need to be tailored
Reference made to particular examples/facts
Heightened obligation when unsuccessful bidder had lower price
Scores alone are not sufficient
Succinct does not mean sufficient

16. Consider these: The Panel was impressed by:
Reference to lessons learned;
The use of the RICI matrix; and
The comprehensive and detailed nature of the systems.
The Panel felt that the response could have benefited from:
Clarity on the relevance of the data; and 
Further details on the report and regime. 

17. Consider these: The Panel was impressed by:
Reference to design review, the detailed and comprehensive nature of the systems; and 
Challenging the strategic vision i.e. business case. 
The Panel felt that the response would have benefited from:
Better reference could have been made to how the systems translated themselves to Work Packages. 

18. Replying to an unsuccessful candidate/ tenderer
The Phone call
“Please send me an with your concerns so I can
properly consider and reply”
The Meeting request
Generally no, too dangerous

19. Replying to an unsuccessful candidate/ tenderer
Review process
Fresh eyes
External?
Do not be verbose
Consider timing of reply
Consider finality of your reply
Consider if your draft contains new, or different, information

20. Debrief Meetings No obligation to have them Often dangerous
Can act to defuse tension
“the approach of hunkering down and saying nothing lest it be used against one is not an acceptable stance for any public service organisation dealing with its citizens”

21. UK TCC Guidance on Pre-Action Process
TCC Guidance Note on Public Procurement Cases, 2017:
The potential claimant will send a letter before claim which should identify the grounds then known for the claim; any information sought; the remedy required; request for an extension of the standstill period and/or a request not to enter into the contract
The CA should promptly acknowledge receipt and indicate whether the standstill period will be extended; provide any information to which the claimant may be entitled, and send a substantive response within the timescale proposed by the claimant, or as soon as practical
The parties should make appropriate and proportionate efforts to resolve the dispute without the need to commence proceedings

22. Records and Reporting
Records

23. 84 (1) – Reporting Requirements
A written report for contracts, frameworks and DPS’s (not required for call- off’s)
Must include:
CA details, subject matter and value
Reason for rejection of ALT’s
Name of successful tenderer and reasons for selection
Where applicable:
Details of qualitative selection
Justification for use of competitive procedures
Reasons for not awarding the contract
Reasons for not using electronic means
Conflicts of interest

24. 84(4) – Documentation
Document the progress of all procurement procedures
Keep sufficient documentation to justify decisions
Reg 84(5) = Documentation to be kept for at least 3 years from the contract award date

25. Evaluation – Records Record individual (scores &) reasons
Record moderated scores & reasons
Record why any individual scores & reasons changed
Do not destroy anything! Don’t be like NDA!

26. Evaluation – Records EnergySolutions v NDA (2016)
Decommissioning of 12 nuclear reactors
EnergySolutions unsuccessful (£10m bid costs)
Training materials said “shred notes”
Pre-emptive arse covering
“Wholly lacking in transparency”

27. Evaluation – Records
Focus energy on applying published criteria correctly
Instead of trying to cover your tracks…

29. Construction Law | Dispute Resolution | Procurement | Training
Thank you
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