4.1.4 Evaluation of tenders and selection of preferred bidder

Once the tenders are submitted, they must be evaluated to arrive at the selection of the preferred bidder.

Bids will generally be first assessed on a number of pass/fail criteria before deciding on the single preferred bidder:

□ 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 minimal technical requirements set and that the costs and financial model are consistent with the technical solution.

□ It is important to look at the proposed project management also: the bidding consortium must come across as a cohesive entity rather than just a collection of companies thrown together for bidding purposes.

A key issue is the choice of the criteria for the evaluation and scoring of alternative bids (see Step 3.2.5 Define bid evaluation criteria).

Occasionally only one bidder will submit a tender despite the public authority having issued the invitation to tender to several shortlisted candidates. In good procurement practice, the question of how to proceed should be considered case by case<1>

□ 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 good competition (and this should be supported by the public authority's advisers carrying out benchmarking of prices and in some cases by insisting on actual market testing of the prices 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. <2>. The two most noteworthy elements of this Directive are the following:

□ A minimum "standstill period" of 10 days is required between the 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. (Such a standstill period had already emerged in case law; the purpose of the new Directive provision is to standardise the terms across member states); and

□ More important, under the new Remedies Directive, an aggrieved bidder can bring an action to have the contract rendered "ineffective" if the procuring authority contravened EU procurement rules in a serious way. Previously, the sole remedy was to award monetary compensation to the aggrieved bidder, but now the contract would come to an end. This contract termination or cancellation will operate only prospectively. Exactly how the various rights and obligations of the parties at that point will be sorted out is left to national law.