Dealing with de-brief requests from unsuccessful bidders
Minimise the risk for challenge by following the below tips as far as possible:
- Try to hold any de-brief after the standstill period has expired (or longer if possible). The further into the 30-day limitation period for bringing a claim, the better.
- Ask the bidder requesting the de-brief if they could give you an indication of what they would like to cover beforehand (on the basis that you want the meeting to be as responsive and helpful as possible).
- If the correspondence surrounding the de-brief request sounds as though it is contentious, or if the meeting becomes contentious during its course, consider suggesting that if the meeting is to progress further, it should be “without prejudice”. Ask them to agree and take a note of their agreement. (“Without prejudice”, if agreed by both sides, means that the content cannot generally be referred to in Court proceedings).
- Prepare for the meeting (if held in person rather than by telephone) by checking and rechecking the scores and reasons behind them. This area is probably what they will want to focus on.
- It would be sensible not to have the actual evaluators in the room during the de-brief unless their expert input is required. Having the moderators / project team leaders present instead makes it easier to keep a united front, and can give you the option of putting off answering difficult questions by saying that you will need to check with the evaluators.
- Make sure there is someone to take a contemporaneous note of everything said.
- Agree the “script” beforehand and stick to it (mainly scores, reasons for scores and scoring methodologies).
- Arrange for one person (the leader) only to provide the feedback to avoid allowing the other side any opportunities to play people off against each other. Ensure everyone does not say anything that is at odds with what the leader says. The leader should field all questions and the others should only comment if asked to by the leader (which will help ensure consistency).
- Do not make any admissions that the evaluation criteria or methodology have not been applied strictly.
- Limit comments about the evaluation process, so that there are few opportunities for the bidder to discover facts they might use, such as “there were differences in the marks from different evaluators, but the final score was a consensus one”, as that enables the bidder to argue the higher scores should have been the final scores.
- Remember that it is for you to decide what it wants to say and it is for the bidder to challenge that if it wants; you do not need to give your impressions (eg whether you would have expected more from particular bidders, or that you know they have competency that they failed to evidence properly), or give every last detail of the process. Keep comments succinct and necessary.
- Do not make it apparent that there has been comparative marking (if that is the case); ie show that the marks were merited against the criteria and if the successful bidder got higher marks it was because they were merited against the criteria, not because its answers were better by comparison.
- If an “unexpected” question comes up and it needs thought or you think it may be difficult to answer, consider saying that you were not aware that was going to be raised and you need to check or speak to evaluators and respond later.
- With those bidders who you think might be difficult, have a few points up your sleeve about the poor quality of their tender / areas where they did particularly badly. It sometimes helps to plant the impression in their minds that, even if they think they have grounds for complaint, they are unlikely to get anywhere with it because they were so far behind.
- If they ask for further information, consider whether: (a) it is potentially confidential / damaging to third party commercial interests (eg pricing information of other bidders); (b) there is any other reason you should not disclose (eg security issues); and (c) you could delay disclosing it for a few more days so as to get closer to the 30 day limitation period (or past it if reasonably possible). Do not feel you have to agree to disclose it there and then – you could refer to Freedom of Information / Data Protection rights and having to go back and check before agreeing to provide it. NB If they request it under Freedom of Information Act you have up to 20 working days to disclose unless an exception applies, which will take you past the 30-day limitation period in any event (unless the information discloses a new ground for challenge that they could not have been aware of previously which would start a new limitation period running).
- And finally, less is more when it comes to de-brief!