Challenging a tender decision: the standstill period, debriefing and review

You have lost a tender. The letter arrived at 16:40 on a Friday, it names the winner, and somewhere in it there is a date after which the contract will be signed. What you do in the next ten days decides whether the decision stands.

EU law gives every bidder a right to know why it lost, a pause before the contract is signed, and access to a fast review. This guide explains the three, in the order you will meet them.

The award decision letter

Under Article 55 of Directive 2014/24/EU, the buyer must inform every candidate and tenderer of the award decision as soon as possible. The notification must contain:

• the name of the successful tenderer,
• a summary of the relevant reasons for the decision, including the characteristics and relative advantages of the winning tender,
• for a rejected bidder, the reasons for rejection,
• and, under the Remedies Directives, the exact standstill period that applies.

On request, the buyer must provide the fuller reasons within 15 days. This is the debriefing. Ask for it in writing the day the letter arrives, even if you do not intend to challenge: it tells you your scores against the winner's, criterion by criterion, and no other document will teach you as much about how this buyer decides.

Buyers may withhold details that would harm another company's legitimate commercial interests or distort competition. They may not withhold your own scores or the reasons you lost.

The standstill period

Directive 89/665/EEC, as amended by Directive 2007/66/EC, requires a standstill: the buyer may not sign the contract for at least ten calendar days from the day after the award decision was sent electronically (fifteen days if sent by other means, or ten days from receipt). National laws sometimes make it longer. During the standstill, the decision can be reviewed and reversed without unwinding a signed contract.

A contract signed during the standstill, or without the required publication of a notice, can be declared ineffective by the review body: cancelled, in whole or in part, with penalties for the buyer. This is why buyers respect the period, and why your challenge must be filed inside it.

National law may waive the standstill where no notice was required, where there is only one tenderer, or for call-offs under a framework agreement Framework agreement An umbrella deal with one or several suppliers, under which orders are placed later without a new tender. Full entry or a dynamic purchasing system.

Where to go: the review bodies

Each country has a first-instance review body that must be able to act quickly and independently of the buyer:

• Germany: the Vergabekammern (procurement chambers) of the federation and the Länder, with appeal to the Oberlandesgericht.
• France: the référé précontractuel before the administrative court (or the civil court for contracts under private law), decided within about twenty days.
• Spain: the Tribunal Administrativo Central de Recursos Contractuales and its regional counterparts, through the recurso especial.
• Italy: the Tribunale Amministrativo Regionale, under an accelerated procedure.
• Poland: the Krajowa Izba Odwoławcza (National Appeal Chamber).
• The Netherlands: the civil courts in summary proceedings (kort geding).

The country guides name the body for each market. Time limits for filing vary: ten to fifteen days from the notification is common, a few countries allow thirty, and some count working days rather than calendar days. Confirm the limit for your country the day you receive the decision, because a filing one day late is not read.

Fees vary from a few hundred euros to a percentage of the contract value. Legal representation is required in some countries and advisable in all.

What the review body can do

• Interim measures: suspend the procedure or the signature.
• Set aside an unlawful decision: the award, the exclusion of a bidder, a discriminatory specification.
• Order the buyer to correct the procedure: re-evaluate, re-open the competition, remove a requirement.
• Declare a signed contract ineffective in the cases above.
• Award damages, usually in a separate action and usually limited to bid costs unless you can show you would have won.

Review bodies do not re-score tenders. They check whether the buyer followed its own rules and the law: were the criteria published, were they applied as published, was every bidder treated equally, was the reasoning given, was the abnormally low price investigated.

Grounds that succeed

From published decisions across the EU, challenges tend to succeed on:

1. Undisclosed criteria or weightings. The buyer scored something it had not announced, or weighted it differently.
2. Unequal treatment. One bidder was allowed to correct a document and another was not; one was asked to clarify and another excluded for the same defect.
3. Insufficient reasons. The award letter gave no comparison, or scores without explanation. This ground often wins a re-run rather than a reversal.
4. Manifest error of assessment. A score that no reasonable evaluator could have given on the evidence. Hard to prove; review bodies defer to evaluators on judgement.
5. Unlawful exclusion. An exclusion ground applied without the required procedure, or a selection criterion applied more strictly than published.
6. A restrictive specification that should have been challenged before submission. Review bodies increasingly refuse to hear this after the award if the bidder could have raised it during the clarification phase.

Grounds that usually fail: disagreement with the scoring, a belief that your offer was better, and the winner's price being lower than yours.

The first ten days

A timeline that fits inside the shortest standstill:

• Day 1. Read the decision letter twice. Note the winner, your scores if given, the standstill end date and the review body named. Send a written request for the full reasons under Article 55 the same day.
• Day 2. Confirm the filing deadline and the fee for your country with counsel, and whether the deadline is in working or calendar days. Pull the published criteria and weightings from the procurement documents.
• Days 3 to 5. Receive and study the debriefing. Score yourself against the winner criterion by criterion. Mark every point where the reasoning is missing, contradicts the documents, or applies a criterion that was never published.
• Day 6. Decide with the four questions below. If a challenge is on, brief counsel with the marked debriefing, the documents and the timeline.
• Days 7 to 9. File. Ask for interim measures suspending signature. Send the buyer a copy the same day; many will not sign while a review is pending even where the law would allow it.
• Day 10. The standstill ends. If you have not filed, the contract can be signed; if you have, the review body's timetable takes over.

Buyers occasionally sign on day eleven at nine in the morning. Do not plan to file on day ten.

Deciding in ten days

A challenge costs money, management time and, sometimes, goodwill with a buyer you will bid to again. Decide with a short test:

• Is there a rule that was broken, not just a result you dislike? Get the debriefing; compare the scores with the published criteria.
• Would winning the challenge change the outcome? A re-evaluation that leaves you second gains nothing.
• Is the contract worth it? Fees plus counsel against the margin on the contract, discounted by the probability of success.
• What is the relationship worth? Some buyers respect a well-founded challenge; some remember it. Know which one this is.

If the answer is yes, file within the limit, ask for interim measures, and keep the tone technical. If the answer is no, take the debriefing, record the winner's price from the award notice when it appears, and bid better next time. Both are legitimate outcomes; letting the standstill expire without deciding is the only wrong one.