Drafting a Legally Compliant Debriefing Letter to Unsuccessful Tenderers

Author: Alison Hardiman

February 13, 2017

The recent case of RPS Consulting Engineers v Kildare CC [2016] IEHC 113 significantly increased the onus on contracting authorities regarding the level of information that must be provided to unsuccessful tenderers within the standstill or debriefing letter issued to them to communicate the outcome of the tender process.

In the course of his judgment, Humphreys J stated that the primary purpose of the reasons provided to explain the scores awarded to unsuccessful tenderers was:

  • to enable the tenderer to know whether it has grounds to challenge the decision; and
  • to enable the court to effectively conduct a judicial review if initiated.

Humphreys J then went on to provide a checklist of what information must be provided. In circumstances where he has specified that this letter will inform the unsuccessful tenderer as to whether they have a potential case, it is recommended that this checklist is carefully adhered to by contracting authorities. Unsuccessful tenderers will use this checklist to measure compliance:

“RPS” Checklist:

  1. “Where the award turns on quantitative criteria such as price,… it may be sufficient to give the scores alone in relation to such quantitative criteria.
  2. Where the award turns on qualitative criteria, there is a heightened obligation to give reasons, particularly where the unsuccessful tenderer offers a more competitive price. In such situations, scores are insufficient.
  3. The awarding authority must give reasons as to the relative advantages of the preferred tenderer. That involves a comparison between the preferred tenderer and the particular unsuccessful tenderer to whom a statement of reasons is addressed.  To that extent there is a legal requirement for a bespoke statement of reasons.
  4. While brief statements or succinct comments may be sufficient in particular circumstances, it does not follow that because a statement is succinct it will therefore be sufficient.
  5. The contracting authority’s comments must be sufficiently precise to enable the applicants to ascertain the matters of fact and law on the basis of which the contracting authority rejected their offer and accepted that of another bidder.
  6. In order to set out the characteristics and relative advantages of the successful tender, the contracting authority must at least mention the matters which should have been included in the applicant’s tender or the matters contained in the successful tenders. The statement of reasons must therefore be sufficiently detailed to explain how the preferred tender was advantageous by reference to particular matters, respects, examples or facts supporting a general assertion of relative advantage.
  7. Separately from the general requirement to give reasons, an unsuccessful tenderer may request additional information about the reasons for their rejection in writing. That request must be responded to positively unless specific listed exceptions apply.”

McDowell Purcell regularly provides bespoke training for contracting authorities in relation to the conduct of a legally compliant and effective tender process. Please do not hesitate to contact us for assistance.

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