The Procurement Act 2023: What you need to know about the new approach to debriefing unsuccessful bidders

The Procurement Act 2023 (the Act) came into force on 24 February 2025, marking a significant overhaul of the existing EU-based rules governing the award of contracts by public authorities and utilities for the purchase of works, supplies, or services. We touched on debriefing unsuccessful bidders in our earlier blog post and here we go into a bit more detail about what to expect under the new Act, which applies to contract award procedures commenced (through publication of a tender notice) on or after 24 February 2025.

Previous regime

Under the previous regime contracting authorities were required to send a standstill letter to unsuccessful tenderers, detailing the scores, characteristics, and relevant advantages of the winning bid. A standstill period of at least 10 calendar days had to be observed before signing the contract with the successful bidder.

Assessment summaries

The Act introduces the new concept of an assessment summary. Section 50(3) of the Act states that after reaching an award decision, a contracting authority must provide an assessment summary to each bidder. These are sent privately and are not published on the central digital platform. The Procurement Regulations 2024 outline the required content of an assessment summary, which includes feedback on the scores of both the recipients bid and the winning bid. The 'relative advantages and characteristics' language from the previous regulations has been removed.

Assessment summaries serve a similar function to the previous notice of a decision to award a contract. However, unlike the old regime, the assessment summary does not initiate the standstill period – this is now triggered by the publication of the contract award notice (CAN).

Contract award notice

Following the issuance of assessment summaries but before entering the contract, section 50(1) of the Act requires a contracting authority to publish a CAN. The CAN publicises the contracting authority's intention to enter into the contract with the winning bidder and triggers the standstill period. The standstill period begins with the publication of the CAN and announces that assessment summaries have been sent to successful and unsuccessful tenderers.

It is important to note the difference in terminology between the previous regime and the Act regarding the use of CAN. A 'contract award notice' under the previous regime refers to a notice published following the conclusion of the contract. This is now referred to as a 'contract details notice' under section 53(1) of the Act.

Section 50(6) outlines exceptions to this requirement, including defence and security contracts, user choice contracts (such as contracts for certain user choice services)¹, contracts called off under a framework or dynamic market, and direct awards made on urgency or 'protect life' grounds.

Standstill period

Under the previous regime, the standstill period began with the issuance of a compliant 'award decision notice' by the contracting authority and would end by midnight at the end of the tenth calendar day after the notice was issued.

The new Act, however, stipulates that the standstill period is now eight working days, starting from the day the CAN is published, as per section 51(2). The contracting authority must not enter into the contract until the mandatory standstill period, or any longer standstill period stated in the contract notice has ended.

Automatic suspension of contracts

The mechanics of the automatic suspension of contract awards have also changed. Previously, as long as a claim was issued and the contracting authority was notified before entering into the contract, the automatic suspension would be invoked. Under Section 101(1) of the Act, the claim must now be commenced, and the authority notified, during the standstill period for the automatic suspension to apply. If a claim is issued after the standstill period but before the contract is entered into, the claimant will not benefit from the automatic suspension.

Section 102(1) allows a defendant contracting authority to apply to lift the automatic suspension, with the Court considering factors such as public interest, the adequacy of damages for the claimant, and other relevant matters.

Comment

It appears that the rationale behind the introduction of the assessment summaries was to make them less comparative and therefore less burdensome. However, authorities are still required to provide detailed feedback, which may allow for comparisons between winning and losing bids. This raises questions about whether the new procedure will indeed be less burdensome in practice.

Under the old regime, losing bidders often sought additional information to assess the contracting authority's evaluation of bids and the prospects of a successful challenge. The new Act may make it more difficult for challenging bidders to obtain early disclosure, as contracting authorities may argue that sufficient information has already been provided in the assessment summaries (though this should not dissuade disappointed bidders from seeking the information they require).

One of the more important changes, at least from a tactical perspective, concerns automatic suspension. As this is now restricted to claims issued during the standstill period, aggrieved bidders arguably need to move more quickly than under the old regime if they consider they have good grounds to challenge and wish to maximise their position. Standstill periods are usually a time of heightened risk and anxiety for all participants in a public procurement process and, although contracting authorities may be comforted by some of the changes brought about by the Act, we expect the eight working days between CAN publication and the earliest point at which a contract can be signed will continue to be a nervous wait.