What is the Alcatel or Standstill period and how could it affect your tender

Apr 18, 2020

Broadly speaking, if a challenge is lodged by an unsuccessful tenderer during this period, the authority is duty bound to stop the tendering process if it is considered that the challenge has grounds for investigation.

Following on from my blog concerning the difference between above and below the threshold tenders, which discussed how the higher value tenders that are posted on the Official Journal of the European Union (OJEU) afford a greater degree of protection to tenderers than lower value tenders, which fall ‘below the threshold’, this blog discusses one such protection that ensures all tenderers can directly challenge selection decisions made by tendering authorities.  

At the point where the tendering authority publishes its decision to a tender posted on OJEU and posts the name or names of the selected supplier, what follows is a minimum ten calendar day period called the Alcatel or Standstill period. This is a mandatory period where unsuccessful tenderers are able to challenge the decision before the contract is signed, if they think that it can be proven that the tendering process had any inconsistencies that did not follow the European procurement rules. It is named after a pair of linked European Court of Justice cases, which are jointly known as the Alcatel case https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:61998CJ0081_SUM&from=EN.

Within the UK, it was introduced by the Office of Government Commerce in 2005. For the UK, procurement rules applying to EU member states shall continue to apply until the end of 2020. As from 2021, the UK shall operate its own procurement rules, however given that the UK was a major contributor to the EU, it held great sway in terms of negotiating a large proportion of the protections in place for tenderers, so it is highly probable that these protections (including Alcatel) shall continue.

During the ‘Alcatel’/‘Standstill’ period, the tendering authority and the selected supplier(s) cannot communicate with each other. Broadly speaking, if a challenge is lodged by an unsuccessful tenderer during this period, the authority is dutybound to stop the tendering process if it is considered that the challenge has grounds for investigation. There is a possibility that the ten day period could be extended to allow the scrutiny group extra time to fully investigate the nature of the challenge. If it is found that the challenge has no basis for consideration and is dismissed, the selected supplier and the tendering authority may then enter into the contract. If the challenge is upheld however, the tender process must cease and the award decisions made to the selected suppliers are rescinded. The service would then resume with the existing incumbent remaining in post, regardless of whether or not they were successful during the failed tendering process. Following a period of review of its tendering process, to ensure that the same instance cannot re-occur, the tendering authority must then re-run the tender.

A recent high profile challenge occurred in May 2019, when a consortium consisting of Virgin Trains, Stagecoach and the French national rail operator SNCF took the UK Government to court after it was alleged that the Department of Transport had breached its statutory duties, by barring the group from the tendering process; effectively acting collusively against the group:

https://www.theguardian.com/business/2019/may/24/virgin-trains-takes-government-to-court-over-west-coast-route.

In reality, challenges lodged during the Alcatel/Standstill period are very rare. In addition, tendering authorities are acutely aware of the potential for reputational damage if a challenge is lodged. In the majority of cases where challenges are lodged however, the scrutiny group is generally able to prove that the challenge is unsubstantiated and the suppliers and authority are able to go ahead and sign contracts. If however, your business was to be selected as a supplier, but a challenge is lodged against the initial decision to take your business on, you’ll want an expert on board that understands the legislation and can act on your behalf.

As previously stated, instances such as these are rare and Tenderwin has supported two clients that had encountered this very issue. In one instance, the client was in the final two, so when they were notified that they were not successful and the comparative scores between the two were provided, it became apparent that the authority had not provided scores for two specific pieces of the client’s response, with the difference of the total scores being less that the possible total of the two missing scores for the client. A challenge was lodged, with proof being sent to the authority that responses had indeed been provided prior to the tender deadline. The authority therefore had to re-score and the client was successful.

In the other instance, on the day of submission for another client’s tender, the authority decided to stop the tender. An internal organisational matter had occurred that led to the tendering process needing to be halted. After investigation, it was found that the authority intended to re-tender quite soon thereafter. Tenderwin supported the client to prepare the re-tender, which went on to be selected. Know how to navigate the process means that you don’t have to just put it down to experience!

If you’ll like to learn more about how Tenderwin supports its clients through the tendering process and you’d like to discuss your next tender project, contact Daniel Bouvet on (07990) 524513 or email Daniel here.