It might seem a little early to be sending festive wishes, but what can I say, we like to be ahead of the curve here at Trowers & Hamlins. All joking aside however (although the festive wishes are genuine) this article carries a very important message for procurement and commercial practitioners throughout the public sector.
This year will be the first festive season under the Procurement Act 2023 (the Act) and therefore the first such period with the new standstill period. As many of you will know, under the old Public Contracts Regulations 2015 (the PCR) the standstill period was 10 days (Regulation 87(2) of the PCR), but under the Act this has changed to 8 working days (section 51(2) of the Act). A minor change in the context of most procurements, and certainly not something that was on the top of anyone’s list of niggles in relation to the Act. However, with the festive season approaching, that might just change.
If you are planning a procurement process now, or are currently in the midst of one, have you reflected on your timeline? What does it say for release of assessment summaries and the contract award notice? If it says anything between the 12th December and 31st December you might want to think again about that window, or embrace the possibility of a longer than desired standstill.
The many bank holidays over the festive season have the potential, depending on the date for release of assessment summaries and the contract award notice, to extend the period by quite a few days. The 18th December is likely to be the worst date for authorities, hitting every bank holiday in December and two weekends. It seems that gone are the days of tactically releasing your standstill letters on the 23rd or 24th December, hoping that bidders' procurement and legal teams will be on a break for the next 10 days. The Act arguably encourages authorities to announce award decisions outside the peak festive season by giving, through the focus on working days, more time for bidders to consider the content of assessment summaries.
Such an approach is sensible given the move to limit automatic suspension to when a challenge is served in the standstill period. If courts are closed, why should the clock be ticking down for bidders to bring a claim? It also accords with the focus on acting with integrity in section 12, ensuring that authorities are held to account and cannot avoid challenge just because they strategically commenced the standstill period.
So what should contracting authorities do? Quite simply, just make sure you know your indicative timelines and are comfortable they work with the risk profile of your procurement. If it’s a simple open process, for a low value, and set within a buoyant supplier market where challenge is unlikely, a few extra days of standstill might not be so bad. However, if you are running a high profile procurement with a landmark contract at stake, maybe think again about when you release your award decision. Do you really want to give a disgruntled bidder in that context more time? I doubt a Christmas Eve assessment summary will be their idea of a gift, but the extra time to contemplate a challenge will surely be welcomed?
