Buying things that are over the procurement threshold – part three

The DfE has updated it’s guidance on how schools can buy high value things and comply with EU procurement rules, including advertising a contract and running a buying process

So, you’ve decided the winning bidder – now what?

Telling unsuccesful bidders

Tell all unsuccessful bidders who won – and tell them at the same time. Your letter must include:

  • the name of the winning bidder;
  • the award criteria you used;
  • the scores for the winning bid;
  • the reasons for the decision, including the characteristics and relative advantages of the successful tender;
  • when the ‘standstill’ period ends;
  • their scores and feedback.

If an unsuccessful bidder asks for the actual cost of the winning bid, you should give it to them as long as it does not reveal any commercially sensitive information. You do not have to give a detailed breakdown of costs.

If an unsuccessful bidder asks for feedback you do not have to give it. If you do then you should:

  • only comment on their unsuccessful bid – do not share details of anyone else’s;
  • try to give positive feedback.

Our advice is to avoid feedback meetings. If you do decide to meet face-to-face, keep notes during the meeting and have more than one member of staff present.

Telling the winning bidder

Write to them saying they have won. Your letter must include:

  • the award criteria you used;
  • their scores;
  • why you think their bid is the most economically advantageous;
  • when the standstill period ends.

The letter is an invitation to finalise a contract, but make it clear that:

  • you’ll only award them the contract if the ‘standstill’ period passes without a challenge from another supplier;
  • there are no commitments, and no work should begin, until both of you have signed the contract.

If, for any reason, they decide not to go ahead with the contract, you can award the contract to the second-highest scoring bidder – if you reserved the right to do so in your original tender documents – or you can rerun the process.

Apply a ‘standstill‘ period

By law, you must have a ‘standstill’ period of at least 10 calendar days between telling the bidders your decision and awarding the contract. If the period ends on a non-working day extend it to the end of the next working day.

Challenges from unsuccesful bidders

During the standstill period, if an unsuccessful bidder challenges the fairness of the contract award decision, or process, you must contact them and explain that you’ve conducted a fair assessment process and that you’ve kept good records. Depending on the nature and seriousness of the challenge you may want to get legal advice before responding.

If they then make a legal challenge do not finalise the contract. Seek legal advice and wait to see if the court reviewing the challenge grants ‘interim measures’. If so, you should then wait for the outcome of the legal proceedings.

Awarding the contract

When the standstill period ends tell the successful supplier that you’re placing the contract with them; your school/organisation and the supplier should both then sign the contract. If they agreed to use your terms and conditions, check that the signed copy they send back is exactly the same as the copy you sent them. The last copy of the terms and conditions sent by either side is the one that is legally binding, so make sure that you’re the last to sign.

You must place a contract award notice on FTS within 30 days of awarding the contract and, if you placed an advert in Contracts Finder, place a notice of your contract award there too.

Set up a meeting with the supplier to finalise the management and payment arrangements, clarify key performance indicators and agree how you will work together.

Needing to abandon

On rare occasions you may need to stop the bidding process. You must send a notice on FTS telling them what has happened. If you stop the process while suppliers are preparing, or have submitted their bids, you should tell them, along with your reasons.

If this happens very late in the process – from the evaluation period onwards – you may be at risk of a legal challenge.

You cannot abandon the process because the highest scoring bidder is not the supplier you want.

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