Having clarified any outstanding issues and reached agreement on the bid representing the best offer under the published award criteria, the contract award decision should be notified to all the tenderers as soon as possible.
Above threshold contracts
For above threshold contracts tendered through either an Open or Competitive Flexible Procedure, there must be a mandatory standstill period. This period must beat least 8 business days between the publication of the Contract Award Notices / notification to bidders of the award decision and the conclusion of the contract, i.e. the formal award and then publication of the Contract Details Notice. This is to allow the unsuccessful tenderers an opportunity to seek a further debriefing and if they feel they have grounds for complaint, give them an opportunity to dispute the decision before the contract is concluded.
Where an above threshold contract has been awarded by mini competition from a framework, this is treated as a ‘public contract’ under the procurement act and the same process needs to be followed.
Below threshold contracts
For below threshold contract awards, the Schools Exemption removes the requirement for transparency and the publication of award notices on the Find a Tender Service.
Contract status
However, if you elect to openly tender a below threshold valued contract, you must follow the procedure for an above threshold open tender. The actual status of the contract at this stage will depend on the procedure followed and the type of arrangement that has been set up.
If the purpose of the competition was to set up a framework for future call off contracts, the ‘contract award’ sets out the framework under which subsequent requirements will be sourced. The standstill period applies to that award and where it is a multiple-supplier framework, a voluntary standstill period could apply after each mini-competition. In legal terms, the actual contract is not concluded until a purchase order is issued, each time a call off contract is placed for specified supplies or services.
Where the competition was for a specific purpose i.e. not to set up a framework, the formal awarding of the contract creates the legally binding contract. In most cases, the contract process begins when the buyer issues a purchase order and ‘orders’ the suppliers and/or services. The exception to this is where the contract is ‘made under seal’ usually where land or property is involved, for example: major building contracts. Here, the purchase order is an important document, however its purpose is more to do with tracking the finances of the contract, than the actual contract itself.
Once the purchase order has been signed, issued and accepted by the supplier or the contract documentation is signed under seal, the contract is legally binding on all parties.
Contract award - associated risks | ||
Issues | Risks | Solutions |
Competitions | · Applicants that do not meet the selection criteria are not advised promptly · Open to challenge if applicant believes they did meet the selection criteria · Tender process could be delayed while complaint is dealt with | · Advise promptly, any applicants that are not being invited to submit a tender, in a two-stage tender process |
Complaint received after short listing stage completed | · Delay in issuing the Invitation to Tender · The closing date for return of submissions may have to be delayed · The tender process may have to be stopped | · De-brief the applicant promptly · Where there is a delay that affects the tenderers, re-schedule the closing date and time, advising all participants accordingly · If there are grounds for complaint it may be necessary to stop and re-run the competition |
All bidders not told of recommended award decision at the same time | · Open to challenge of unfair treatment and failure to comply with the legislation · Unsuccessful bidders not afforded opportunity to seek additional de-briefing before contract award is concluded | · Advise all participants of the proposed award decision in writing at the same time. Detailing the proposed earliest date on which you intend concluding the contract in compliance with the mandatory standstill period requirements |
Notification of award communication does not state that it is proposed to award the contract to ‘Firm X’ on or after ‘Date’ using suitable wording | · The wording of the communication may create a legally binding contract under law | · Ensure the wording used in the communication gives an indication of the proposed contract award if no challenges are received before a stated date (at least 8 business days in the future) |
Notification of award communication does not give the recipient all the information required in a standstill notice | · Many of the bidders will seek additional de-briefing to find out why they are not the proposed winner of the competition · Challenges may be valid even if brought outside the 8-business-day standstill period | · Ensure your award letter notification contains the following information o The award criteria o The tenderer’s score o The winning tenderer’s score o The name of the winning tenderer o The reasons for the decision including the characteristics and relative advantages of the winning tenderer |
Standstill period not observed | · Many of the bidders will seek additional de-briefing to find out why they are not the proposed winner of the competition Challenges may be valid even if brought outside the 8-business-day standstill period | · Ensure the mandatory standstill period of at least 8 business days is observed · Undertake a voluntary standstill of a similar period for any above-threshold contract awards called off frameworks |
Formal complaint received during standstill period | · Many of the bidders will seek additional de-briefing to find out why they are not the proposed winner of the competition · Challenges may be valid even if brought outside the 8-business-day standstill period | · Seek to defend or resolve the complaint, keeping detailed records of discussions and actions · If grounds of complaint cannot be defended, stop the award process and seek legal advice |
Templates
CPC has produced several templates covering this element of the procurement lifecycle, find them in the Procure section of the Procurement Toolkit. These are provided at no cost to our members and can be downloaded and adapted for your institution’s use.
Further reading
The Cabinet Office has produced a range of guidance notes covering the ‘procure’ phase of the procurement lifecycle. This is aimed at those working in a procurement function with the wider public sector and you may find additional information as you begin the process of planning procurement activity.
School / MAT members - the information on this page aligns with the following ISBL Professional Standards: 3.41, 3.42, 3.43, 3.44