Client feedback: Let me explain (at length)

Providing feedback to unsuccessful bidders is normal practice for clients in the construction industry. However, recent case law - in the UK and in Europe - has highlighted the need for public sector clients to provide detailed information about the evaluation process, or face judicial challenge.

Under the Public Contracts Regulations 2006, a client must provide a wide range of written information to an unsuccessful bidder including: the name and scores of the winning bidder, a reiteration of the award criteria adopted by the client, the scores of the unsuccessful bidder and details of when the mandatory standstill period will end.

There is also a requirement to provide the reason for the award decision, including the details of the “characteristics and advantages” of the winning bidder. This requirement means that a client will need to provide tailored feedback to each unsuccessful bidder, not only on why its bid lost but also on why the winning bid won. This can be a huge administration task and clients and their advisers need to factor in the cost and time of this exercise at the outset of the procurement.

If clients are restrained in their feedback, it is often difficult for unsuccessful bidders to understand why they lost out. Lack of detailed feedback leads to the unsuccessful bidders requesting further information or a face-to-face debrief and the suspicion that the client has “something to hide”.

Unfortunately some contractors use face-to-face feedback sessions as ’fishing trips’

However, clients are often unaware of how much feedback they should provide and it is unclear as to what the feedback on the “characteristics and advantages of the winning bidder” amounts to. In the European case of Dynamiki, the court noted that clients must supply, “all information that would be necessary for the unsuccessful bidder to determine whether or not a decision is well founded … or sufficient information to enable the unsuccessful bidder to assert its rights before the court and the court to exercise its supervisory jurisdiction”. In practice, this means that, without breaching the commercial confidentiality of the winning tender, a client should provide a full breakdown of the scores against each of the award criteria (and sub-criteria, if used) and a clear explanation of why the winner scored more highly as well as the areas where the unsuccessful bidder could improve for future bids.

Clients also need to be careful that they are consistent in the feedback they provide as (unfortunately) some contractors use face-to-face feedback sessions or additional information requests as “fishing trips”. The result of this is that many clients now choose to forgo verbal feedback sessions, as they fear that they will be used by bidders to try and “trip them up” or find breaches that do not exist. Of course, this is the whole point of feedback: to provide an unsuccessful bidder with information to see whether an award decision is well-founded. This reticence to engage in full and frank discussion must surely do the industry as a whole a disservice and has the effect of building barriers between clients and their potential contractors.

A well-run, compliant process should mean that clients have nothing to fear, even when providing feedback to the most disappointed of bidders and clients should not hide behind scanty written feedback to avoid a valid challenge. Clients in breach of the regulations should be warned that failure to provide thorough information will likely result in a court exercising its discretion to extend timescales to allow a late challenge.

In conclusion, it seems that providing feedback has now become a minefield for public sector clients, rather than the learning process it was originally designed to be.

Rebecca Rees is a partner in Trowers & Hamlins