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The Standstill Period

This guidance note gives an overview of the rules around a standstill period, the time limits for a supplier challenging a proposed or actual award and the remedies in place if the Regulations are breached.

Under Regulations 85 to 87 of the Public Contracts Regulations 2015, public bodies must by law hold a standstill period before entering into a contract or concluding a framework agreement.

What is a standstill period?

When undertaking a procurement exercise that is above the EU thresholds, you must hold a standstill period before awarding your contract.  The mandatory standstill period gives unsuccessful suppliers at least 10 calendar days after being notified of an award decision to challenge the decision before the contract is signed with the successful supplier.

When an award decision has been made the University must issue standstill letters to all suppliers that were invited to tender whether they submitted a bid or not.

There are very strict requirements about what details the standstill letter must contain, these are set out in Regulation 86 of the Public Contracts Regulations 2015 and cover the following:

·         The criteria for the award of the contract;

·         The reasons for the decision including the characteristics and relative advantages of the successful tender.  This should include a full breakdown of scores against each criterion and sub-criterion with supporting explanation;

·         The reasons (if any) why the economic operator did not meet the technical specifications;

·         The name of the tenderer(s) to be awarded the contract/ become party to a framework agreement;

·         A statement of when the standstill period is expected to end.

If your letters do not contain this mandatory information then the standstill period can be deemed to have not started.

When standstill letters have been issued suppliers then have 10 calendar days to formally challenge the proposed contract award. The standstill period is 15 days if standstill letters are not issued electronically.

The 10 days starts the day after the letters are issued and must end at midnight on a working day, i.e. not a weekend or bank holiday.

We are not legally allowed to have any discussions with the supplier we intend to award to until the standstill period has passed.

Do we have to hold a standstill period on a Framework Call-Off?

No, there is no mandatory requirement to hold a standstill period for above threshold call-offs but it is recommended to protect against post-contractual ineffectiveness claims.

Do I still need to do a face-to-face debrief?

We are not obliged to provide a debrief, all of the debrief information should be in the standstill letter.  By offering a debriefing session there is a risk that there will be a discrepancy between the written information in the standstill letter and what is said in the debrief.  This can expose the University to a greater risk of challenge.

What happens if we receive a challenge?

This is covered by Regulation 95 in the Public Contracts Regulations.  If the challenge is received whilst you are in the standstill period and / or before the contract is concluded then you must not enter into the contract until the Court makes a decision.

Suppliers may grumble about an award decision, for the award of the contract to be suspended the supplier making the challenge must serve a claim form on the University within 7 days of alleging a breach of the Regulations.

If the contract has already been entered into then the Courts will decide what happens next.

Can a contract award be challenged after the standstill period?

Yes is the simple answer, the Regulations allow for a full 30 days for the supplier to challenge from the point at which they should have known of a breach of the Regulations.  The point at which the supplier should have known of the breach is referred to as ‘constructive knowledge’ i.e. knowledge of facts that demonstrate an infringement. Your contract can therefore still be open to challenge after the standstill period has passed.

What Remedies are there?

If the contract has not been entered into the following remedies can apply (Regulation 97):

Set aside the award – i.e. you can’t award the contract;
Order the University to amend documents;
Award damages to the supplier that has suffered a loss as a consequence of the breach

 

If the contract has been entered into the following remedies are available (Regulation 98):

The Courts may declare the contract ineffective – this can happen up to 6 months after contract award;
Can award penalties in addition to or instead of ineffectiveness;
May award damages to the supplier that has suffered a loss as a consequence of the breach

What happens if we don’t hold a standstill period?

You are breaking the law, the remedies set out above would apply.

Are there any circumstances when we do not need to hold a standstill period?

When you don’t have to advertise the contract e.g. below threshold procurements or negotiated procedures without a call for competition;
When there is only one tenderer remaining and there are no candidates;
In above threshold call-offs contracts from a framework agreement or Dynamic Purchasing System – the standstill period is voluntary not mandatory.

Recent Case law

Lightways (Contractors) Limited v Inverclyde Council

Energy Solutions EU Limited v Nuclear Decommissioning Authority

 

Should you require any further details please contact a member of the Purchasing Team.