3.1.4 Evaluation of tenders and selection of the preferred bidder 
Guidance 67, 68, 69, 70, 71, 72, 73
Once the tenders are submitted, they must be evaluated to arrive at the selection of the preferred bidder.
Bids will generally be assessed first on a number of pass/fail criteria before the single preferred bidder is decided on. For example:
• even if the evaluation score is not based on a technical evaluation, a determination must be made that the technical solution proposed by a bidder is feasible, deliverable and robust, that it is based on reliable technologies, that it meets all minimum technical requirements set and that the costs and financial structure are consistent with the technical solution; and
• it is important to look at the proposed project management: the bidding consortium must come across as a cohesive entity rather than just a collection of companies put together for bidding purposes.
A key issue is the choice of the criteria for the evaluation and scoring of alternative bids.
Occasionally, only one bidder will submit a tender despite the Authority having issued the invitation to tender to several shortlisted candidates. Should that happen, in good procurement practice, the question of how to proceed should be considered case by case: Guidance 74
• If it appears that bidder interest was low because of deficiencies in the tender documents (including the project specifications or the draft PPP contract) and these can realistically be remedied, then the best solution might be to repeat the tender procedure this time on a better footing.
• If it appears that the bid was made in the bidder's belief that there would be a good level of competition (and this should be supported by the Authority's advisers carrying out benchmarking of costs and in some cases by insisting on actual market testing of the costs of the major subcontracts), then the best solution might be to continue with the procurement and consider the sole bidder to be the winner, provided that the tender is fully compliant and meets all pass/fail evaluation criteria.
An important issue relating to the PPP contract award concerns the new EU Remedies Directive (2007/66/EC), which was required to be transposed into national law by 20 December 2009. Guidance 75 The two most noteworthy elements of this Directive are as follows:
CHECKLIST: Bidding process | |||
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| To carry out a successful bidding process, the Authority and its team of advisers need to ensure that all key questions related to the bidding process have been adequately addressed. For example: |
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| Is the institution responsible for awarding and managing the bidding process clearly identified? | ||
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| Does the format of the pre-qualification documents enable bidders to present information about themselves and clearly set out the evaluation criteria and processes applicable in pre-qualification in compliance with the openness and transparency required by EU legislation? | ||
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| Do the pre-qualification evaluation criteria include all relevant features related to the quality and strength of the bidders in terms of their capacity to deliver and their awareness of the PPP project? | ||
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| Does the invitation to tender document include a draft PPP contract, which should set out, among other things, the payment mechanism and penalty regime? Does it include the output requirements of the Authority? | ||
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| Does the invitation to tender document contain all essential components of the PPP project, especially the minimum technical, environmental, legal and financial requirements to be provided by bidders which constitute a compliant bid? | ||
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| Have adequate provisions ensuring that the Authority offers no information warranties and setting rules of access to the data room been included in the invitation to tender document? | ||
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| Have all critical processes required to manage the interaction with bidders during the bidding process (including a code of conduct, communication with bidders, audit trails and meetings, consortia changes and bidders' due diligence) been considered and implemented? | ||
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| Have the evaluation criteria and processes been established and evaluation teams and committees been appointed before bids are submitted? | ||
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• a minimum "standstill period" of 10 days is required between the PPP contract award decision and the actual conclusion of the contract to allow rejected bidders time to conduct their review and decide whether they want to challenge the award (Note that such a standstill period had already emerged in case law; the purpose of the new Directive's provision is to standardise terms across Member States); and
• more importantly, an aggrieved bidder can bring an action to have the PPP contract rendered ineffective if the Authority contravened EU procurement rules in a serious manner. Previously, the sole remedy that an aggrieved bidder could seek was to be awarded monetary compensation, but nowadays an aggrieved bidder could seek cancellation of the PPP contract. How the various rights and obligations of the parties will be determined in this case is left to national law.