Overview

The duty on public authorities to provide reasons for the procurement decisions they take is a legal obligation of considerable importance in the area of public procurement. A failure to provide sufficient reasons potentially leaves an authority open to legal challenge and the failure to provide such reasons may be a ground for the annulment of a procurement decision.

From a legal perspective, the provision of reasons to losing tenderers is required (i) to enable the tenderer to assert its right to bring a challenge to the decision and (ii) if such a challenge is brought, to enable the Court or other reviewing body to exercise its functions of reviewing the decision that has been taken. If reasons are not given, then a losing tenderer will not know whether it has grounds to initiate a challenge. Similarly, without the benefit of an expression of reasons, it is difficult for a court to review the legality of the decision. At a more general level, the provision of feedback to losing bidders ought, in any event, to form part of good procurement practice.

Disputes about reason-giving frequently arise in challenges to tender decisions and there is now an extensive body of case law examining the duty to provide reasons in public procurement. While the requirement to provide reasons can be fairly easily described, experience shows that, in practice, the issuing of reasons can cause considerable difficulty. Issues concerning the treatment of confidential information also frequently arise.

Legislation
  • EU
    • Directive 2014/24

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      • Article 55 – Informing candidates and tenderers
        1. Contracting authorities shall as soon as possible inform each candidate and tenderer of decisions reached concerning the conclusion of a framework agreement, the award of the contract or admittance to a dynamic purchasing system, including the grounds for any decision not to conclude a framework agreement, not to award a contract for which there has been a call for competition, to recommence the procedure or not to implement a dynamic purchasing system.
        2. On request from the candidate or tenderer concerned, the contracting authority shall as quickly as possible, and in any event within 15 days from receipt of a written request, inform:

        (a) any unsuccessful candidate of the reasons for the rejection of its request to participate,

        (b) any unsuccessful tenderer of the reasons for the rejection of its tender, including, for the cases referred to in Article 42(5) and (6), the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements,

        (c) any tenderer that has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement,

        (d) any tenderer that has made an admissible tender of the conduct and progress of negotiations and dialogue with tenderers.

        1. Contracting authorities may decide to withhold certain information referred to in paragraphs 1 and 2, regarding the contract award, the conclusion of framework agreements or admittance to a dynamic purchasing system, where the release of such information would impede law enforcement or would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or might prejudice fair competition between economic operators.

         

      • Article 84 - Individual reports on procedures for the award of contracts

        1.  

        For every contract or framework agreement covered by this Directive, and every time a dynamic purchasing system is established, contracting authorities shall draw up a written report which shall include at least the following:

        (a)

        the name and address of the contracting authority, the subject-matter and value of the contract, framework agreement or dynamic purchasing system;

        (b)

        where applicable, the results of the qualitative selection and/or reduction of numbers pursuant to Articles 65 and 66, namely:

        (i)

        the names of the selected candidates or tenderers and the reasons for their selection;

        (ii)

        the names of the candidates or tenderers rejected and the reasons for their rejection;

        (c)

        the reasons for the rejection of tenders found to be abnormally low;

        (d)

        the name of the successful tenderer and the reasons why its tender was selected and, where known, the share of the contract or framework agreement which the successful tenderer intends to subcontract to third parties; and, where known at this point in time, the names of the main contractor’s subcontractors, if any;

        (e)

        for competitive procedures with negotiations and competitive dialogues, the circumstances as laid down in Article 26 which justify the use of those procedures;

        (f)

        for negotiated procedures without prior publication, the circumstances referred to in Article 32 which justify the use of this procedure;

        (g)

        where applicable, the reasons why the contracting authority has decided not to award a contract or framework agreement or to establish a dynamic purchasing system;

        (h)

        where applicable, the reasons why other means of communication than electronic means have been used for the submission of tenders;

        (i)

        where applicable, conflicts of interests detected and subsequent measures taken.

        This report shall not be required in respect of contracts based on framework agreements where these are concluded in accordance with Article 33(3) or point (a) of Article 33(4).

        To the extent that the contract award notice drawn up pursuant to Article 50 or Article 75(2) contains the information required in this paragraph, contracting authorities may refer to that notice.

        2.  

        Contracting authorities shall document the progress of all procurement procedures, whether or not those are conducted by electronic means. To that end, they shall ensure that they keep sufficient documentation to justify decisions taken in all stages of the procurement procedure, such as documentation on communications with economic operators and internal deliberations, preparation of the procurement documents, dialogue or negotiation if any, selection and award of the contract. The documentation shall be kept for a period of at least three years from the date of award of the contract.

        3.  

        The report, or its main elements, shall be communicated to the Commission or the competent authorities, bodies or structures referred to in Article 83 where they so request.
      • Article 55 Informing candidates and tenderers
        View section / regulation

        1.   Contracting authorities shall as soon as possible inform each candidate and tenderer of decisions reached concerning the conclusion of a framework agreement, the award of the contract or admittance to a dynamic purchasing system, including the grounds for any decision not to conclude a framework agreement, not to award a contract for which there has been a call for competition, to recommence the procedure or not to implement a dynamic purchasing system.

        2.   On request from the candidate or tenderer concerned, the contracting authority shall as quickly as possible, and in any event within 15 days from receipt of a written request, inform:

        (a)

        any unsuccessful candidate of the reasons for the rejection of its request to participate,

        (b)

        any unsuccessful tenderer of the reasons for the rejection of its tender, including, for the cases referred to in Article 42(5) and (6), the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements,

        (c)

        any tenderer that has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer or the parties to the framework agreement,

        (d)

        any tenderer that has made an admissible tender of the conduct and progress of negotiations and dialogue with tenderers.

        3.   Contracting authorities may decide to withhold certain information referred to in paragraphs 1 and 2, regarding the contract award, the conclusion of framework agreements or admittance to a dynamic purchasing system, where the release of such information would impede law enforcement or would otherwise be contrary to the public interest, would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or might prejudice fair competition between economic operators.

      • Recital 82
        View section / regulation

        It should be clarified that the information concerning certain decisions taken during a procurement procedure, including the decision not to award a contract or not to conclude a framework agreement, should be sent by the contracting authorities, without candidates or tenderers having to request such information. It should also be recalled that Council Directive 89/665/EEC (14) provides for an obligation for contracting authorities, again without candidates or tenderer having to request it, to provide the candidates and tenderers concerned with a summary of the relevant reasons for some of the central decisions that are taken in the course of a procurement procedure. It should finally be clarified that candidates and tenderers should be able to request more detailed information concerning those reasons, which contracting authorities should be required to give except where there would be serious grounds for not doing so. Those grounds should be set out in this Directive. To ensure the necessary transparency in the context of procurement procedures involving negotiations and dialogues with tenderers, tenderers having made an admissible tender should, except where there would be serious grounds for not doing so, also be enabled to request information on the conduct and progress of the procedure.

      Recitals

      Recital 82

      It should be clarified that the information concerning certain decisions taken during a procurement procedure, including the decision not to award a contract or not to conclude a framework agreement, should be sent by the contracting authorities, without candidates or tenderers having to request such information. It should also be recalled that Council Directive 89/665/EEC (14) provides for an obligation for contracting authorities, again without candidates or tenderer having to request it, to provide the candidates and tenderers concerned with a summary of the relevant reasons for some of the central decisions that are taken in the course of a procurement procedure. It should finally be clarified that candidates and tenderers should be able to request more detailed information concerning those reasons, which contracting authorities should be required to give except where there would be serious grounds for not doing so. Those grounds should be set out in this Directive. To ensure the necessary transparency in the context of procurement procedures involving negotiations and dialogues with tenderers, tenderers having made an admissible tender should, except where there would be serious grounds for not doing so, also be enabled to request information on the conduct and progress of the procedure.

    • Directive 89/665

      View legislation

      • Article 2a - Standstill Period

        …
        2.
        …
        The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:
        a summary of the relevant reasons as set out in Article 55(2) of Directive 2014/24/EU, subject to Article 55(3) of that Directive, or in the second subparagraph of Article 40(1) of Directive 2014/23/EU, subject to Article 40(2) of that Directive, and
        a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing this paragraph.

      • Article 2 Requirements for review procedures
        View section / regulation

        9.  Where bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given.

      • Article 2a Standstill period
        View section / regulation

        1.  The Member States shall ensure that the persons referred to in Article 1(3) have sufficient time for effective review of the contract award decisions taken by contracting authorities, by adopting the necessary provisions respecting the minimum conditions set out in paragraph 2 of this Article and in Article 2c.

        2.  A contract may not be concluded following the decision to award a contract falling within the scope of Directive 2014/24/EU or Directive 2014/23/EU before the expiry of a period of at least 10 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned if fax or electronic means are used or, if other means of communication are used, before the expiry of a period of either at least 15 calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned or at least 10 calendar days with effect from the day following the date of the receipt of the contract award decision.

        Tenderers shall be deemed to be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tenderers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure.

        Candidates shall be deemed to be concerned if the contracting authority has not made available information about the rejection of their application before the notification of the contract award decision to the tenderers concerned.

        The communication of the award decision to each tenderer and candidate concerned shall be accompanied by the following:

        —
        a summary of the relevant reasons as set out in Article 55(2) of Directive 2014/24/EU, subject to Article 55(3) of that Directive, or in the second subparagraph of Article 40(1) of Directive 2014/23/EU, subject to Article 40(2) of that Directive, and
        —
        a precise statement of the exact standstill period applicable pursuant to the provisions of national law transposing this paragraph.
  • Ireland
    • SI 130/2010 European Communities (Public Authorities' Contracts) (Review Procedures) Regulations 2010

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      • Regulation 5 Standstill Period
        View section / regulation

        (3) The standstill period for a contract begins on the day after the day on which each tenderer and candidate concerned is sent a notice, in accordance with paragraphs (2) and (3) of Regulation 6, of the outcome of his or her tender or application.

      • Regulation 6 – Notices to unsuccessful tenderers and candidates
        View section / regulation

        (1) The notice referred to in Regulation 5(3), or a notice to an unsuccessful tenderer for a contract based on a dynamic purchasing system, shall be as set out in this Regulation.

        (2) Such a notice—

        (a) shall inform the candidates and tenderers concerned of the decisions reached concerning the award of the contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system, including the grounds for any decision not to award a contract, conclude a framework agreement or implement a dynamic purchasing system for which there has been a call for competition,

        (b) shall state the exact standstill period applicable to the contract, and

        (c) for each unsuccessful tenderer or candidate, shall include—

        (i) in the case of an unsuccessful candidate, a summary of the reasons for the rejection of his or her application,

        (ii) in the case of an unsuccessful tenderer, a summary of the reasons for the rejection of his or her tender.

        (3) In the case of a tenderer who has submitted an admissible tender (that is, a tender that qualifies for evaluation under the rules of the relevant tender process), the summary required by paragraph (2)(c)(ii) shall comprise—

        (a) the characteristics and relative advantages of the tender selected,

        (b) the name of the successful tenderer, or, in the case of a framework agreement, the names of the parties to it, and

        (c) in the cases referred to in paragraphs (6) to (8) of Regulation 36 of the Utilities Undertakings’ Contracts Regulations, the reasons for the contracting entity’s decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements.

        (4) In the case of an unsuccessful candidate, the information to be provided under paragraph (2)(c)(i) may be provided by setting out—

        (a) the score obtained by the candidate concerned, and

        (b) the score achieved by the lowest-scoring candidate who was considered to meet the pre-qualification requirements in respect of each criterion assessed by the contracting entity.

        (5) In the case of an unsuccessful tenderer, the information to be provided under paragraph (2)(c)(ii) and subparagraphs (a) and (b) of paragraph (3) may be provided by setting out—

        (a)        the score obtained by the unsuccessful tenderer concerned, and

        (b)        the score obtained by the successful tenderer in respect of each criterion assessed by the contracting entity.

        (6)        In the case of a framework agreement to which more than one tenderer has been admitted, the information to be provided under paragraph (2)(c)(ii) may be provided by setting out—

        (a)        the score obtained by the unsuccessful tenderer concerned, and

        (b)        the score obtained by the lowest scoring tenderer who was admitted to the framework in respect of each criterion assessed by the contracting entity.

        (7)        However, a contracting entity may decide to withhold any information referred to in paragraph (2)(c) regarding the award of a contract, the conclusion of a framework agreement or admittance to a dynamic purchasing system if the release of such information—

        (a)        would impede law enforcement,

        (b)        would prejudice the legitimate commercial interests of economic operators, whether public or private,

        (c)        might prejudice fair competition between economic operators, or

        (d)        would otherwise be contrary to the public interest.

  • UK
    • Procurement Act 2023

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      • Section 50 Contract award notices and assessment summaries
        View section / regulation

        Section 50 – Contract award notices and assessment summaries

        (1)        Before entering into a public contract, a contracting authority must publish a contract award notice.

        (2)        A “contract award notice” means a notice setting out—

        (a)        that the contracting authority intends to enter into a contract, and

        (b)        any other information specified in regulations under section 95.

        (3)        Before publishing a contract award notice in respect of a contract awarded under section 19 (award following competitive tendering procedure), a contracting authority must provide an assessment summary to each supplier that submitted an assessed tender.

        (4)        An “assessment summary” means, in relation to an assessed tender, information about the contracting authority’s assessment of—

        (a)        the tender, and

        (b)        if different, the most advantageous tender submitted in respect of the contract.

        (5)        In this section, an “assessed tender” is a tender which—

        (a)        was submitted in respect of the contract and assessed for the purposes of determining the most advantageous tender under section 19(1), and

        (b)        was not disregarded in the assessment of tenders.

    • The Procurement Regulations 2024 (SI No. 692 of 2024)

      View legislation

      • Regulation 31 Assessment Summaries
        View section / regulation

        Regulation 31 – Assessment summaries

        (1) This regulation sets out what information must be included in an assessment summary provided to a supplier under section 50(3) of the PA 2023.

        (2)        In the case of the most advantageous tender, the information is—

        (a)    the name of the supplier,

        (b)   a contact postal address and email address for the supplier,

        (c)    the unique identifier for the supplier,

        (d)   in respect of the award criteria for the public contract—

        (i)            the award criteria, including the assessment methodology, set out in full, or a summary of the award criteria including—

        (aa) the title of each criterion,

        (bb) the relative importance of each criterion, and

        (cc) how each criterion was to have been assessed by reference to scores and what scores were to have been available for each criterion, and

        (ii)           if the award criteria, including the assessment methodology, are not set out in full in the assessment summary, an indication of where the full version can be accessed, and

        (e)    how the tender was assessed against the award criteria by reference to scores including—

        (i)            the score determined for each award criterion and—

        (aa) an explanation for that score by reference to relevant information in the tender, and

        (bb) where an award criterion includes sub-criteria for assessment, an explanation of how the tender was assessed by reference to each sub-criterion, and

        (ii)           the total score and any sub-total scores.

        (3)        In the case of any other assessed tender, the information is—

        (a)    the information referred to in paragraph (2)(a) to (d) in respect of the tender,

        (b)   the information as referred to in paragraph (2)(e) in respect of the tender, but only to the extent that the tender was assessed against the award criteria,

        (c)    any further explanation of why the public contract is not being awarded to the supplier including, where the tender was disqualified under the assessment methodology under section 23(3) of the PA 2023, the reasons for that disqualification

        (d)   the information referred to in paragraph (2)(e) in respect of the most advantageous tender.

        (4)        All assessment summaries in respect of a public contract which are provided by a contracting authority to suppliers in accordance with section 50(3) of the PA 2023 must be provided to each supplier at the same time.

        (5)        Nothing in this regulation prevents a contracting authority from providing other information that relates to the same procurement in an assessment summary.

Cases
  • EU - CJEU
    • Case C-629/11P Evropaïki Dynamiki v Commission

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      Region: EU - CJEU

      There are limits to what has to be provided by way of reasons and feedback; A contracting authority is not obliged to provide a full copy of the evaluation report

      “21. [The] Commission cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender (see, to that effect, order of 29 November 2011 in Case C‑235/11 P Evropaïki Dynamiki v Commission, paragraphs 50 and 51 and the case-law cited).

      22. Similarly, the contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report (see order of 20 September 2011 in Case C‑561/10 P Evropaïki Dynamiki v Commission, paragraph 25).”

  • EU - General Court
    • Case T-300/07 Evropaïki Dynamiki v Commission

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      Region: EU - General Court

      The extent of reasons required to be provided depends on the particular circumstances

      “It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations” [46]

    • Case T-89/07 VIP Car Solutions SARL v European Parliament

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      Region: EU - General Court

      The purpose of the duty to provide reasons is (i) to allow a tenderer to know if it has grounds for review and (ii) allow the court/review body to carry out that review

      “[The] reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction” [60]

    • Case T-165/12 European Dynamics Luxembourg SA v Commission

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      Region: EU - General Court

      The purpose of the duty to provide reasons is (i) to allow a tenderer to know if it has grounds for review and (ii) allow the court/review body to carry out that review

      “[The] contracting authority’s comments must be sufficiently precise to enable the applicants to ascertain the matters of fact and law on the basis of which the contracting authority rejected their offer and accepted that of another tenderer” [87]

    • Case T-300/07 Evropaïki Dynamiki v Commission

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      Region: EU - General Court

      The provision of only scores is insufficient for qualitative criteria

      The provision of scores only was insufficient in this case

    • Case T-300/07 Evropaïki Dynamiki v Commission

      View Case

      Region: EU - General Court

      In some cases where the losing bidder offered a lower price, courts have said that it is all the more important that sufficient reasons are provided (although it is not clear what, if any, higher obligation is imposed)

      “[The] information concerning the award criteria was all the more necessary as the price offered by the applicant was lower than that offered by the successful tenderer” [72] (appeal dismissed, Case C-560/10P Evropaïki Dynamiki v Commission, Order of 20 September 2011)

    • Case T-387/08 Evropaïki Dynamiki v Commission

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      Region: EU - General Court

      The adequacy of reasons is to be assessed on the basis of the reasons provided prior to the commencement of proceedings; but statements of reasons after the first statement may be taken into account

      “However, the fact that the Parliament provided the reasons for that decision in the course of the proceedings does not compensate for the inadequacy of the initial statement of reasons for the contested decision. It is settled case-law that the reasons for a decision cannot be explained for the first time ex post facto before the Court, save in exceptional circumstances which, in the absence of urgency, are not present in this case” [76]

    • Case T-89/07 VIP Car Solutions SARL v European Parliament

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      Region: EU - General Court

      The adequacy of reasons is to be assessed on the basis of the reasons provided prior to the commencement of proceedings; but statements of reasons after the first statement may be taken into account

      “[If] the institution concerned sends a letter in response to a request from the applicant seeking additional explanations about a decision before instituting proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question is adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time of instituting proceedings, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement”

    • Case T-477/15 European Dynamics Luxembourg SA v European Chemicals Agency

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      Region: EU - General Court

      The adequacy of reasons is to be assessed on the basis of the reasons provided prior to the commencement of proceedings; but statements of reasons after the first statement may be taken into account

      “It also follows from the case-law that, although it is apparent from the provisions referred to in paragraph 34 above that an adequate statement of reasons must be made, at the latest, when the second letter is sent, the purpose of that letter being to complement the initial statement of reasons as regards the factors which justified the decision to award the contract, the content of a third letter may also be taken into account when such a letter confirms the initial statement of reasons and is restricted to providing more detail on the grounds justifying rejection of the bid of the unsuccessful tenderer and award of the contract to the tenderer whose bid was ranked in first position. However, the grounds set out in such a letter must not undermine the statement of reasons provided in the first two letters (judgment of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v EIT, T‑481/14, not published, EU:T:2016:498, paragraph 82).” [35]

  • Ireland
    • Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59, [2012] 3 IR 297 (Fennelly J)

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      Region: Ireland

      The extent of reasons required to be provided depends on the particular circumstances

      “The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process” [66] (Fennelly J)

    • RPS Consulting Engineers Limited v Kildare County Council [2016] IEHC 113, [2017] 3 IR 61 (Humphreys J)

      View Case

      Region: Ireland

      The provision of only scores is insufficient for qualitative criteria; where the losing bidder submitted the lowest price, it is all the more important that sufficient reasons are provided

      “71. Despite the wording of the Irish Regulations (e.g. Regulation 6(5) of SI 130/2010 refers only to the provision of scores), the Irish courts have held that the provision of scores is insufficient: “the provision of scores alone could only constitute sufficient reason if the tenderer criteria revolved around price or other purely quantitative measurements”

      “74. “In the tender context, in a case where the loser, in fact, submitted a lower priced offering than the winner, there is a particular need for it to be clearly demonstrated that valid objective reasoning was applied in the selection process.”

    • Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform (No. 3) [2018] IECA 156 (Hogan J)

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      Region: Ireland

      Reasons need not be provided for criteria where the loser scored higher or the same as the winner

      “42. [While] a cogent case can be made that a full set of reasons covering disadvantages as well as advantages would advance the transparency of the procurement process, it would also add to the already significant difficulty and burdens faced by evaluation teams”; and approving the following statement of Barrett J in the High Court, Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform [2018] IEHC 237, [28]: “Notably, (i) the Regulations of 2010 do not require the disclosure of the content of the selected tender, but rather its “characteristics and relative advantages”, and (ii) there is no mention of disadvantages in the just-quoted text. It is true that there have been at least two United Kingdom cases, viz. Partenaire Ltd v. Department of Finance and Personnel [2007] NIQB 100 (an application for extension of an interim injunction which stayed a procurement process conducted by a contracting authority) and Lightways (Contractors) Ltd v. North Ayrshire Council, [2008] SLT 690 (an application for interim suspension of a decision by a local contracting authority to accept a particular tender) – neither of which cases was opened before the court but both of which are referenced in Arrowsmith, S., The Law of Public and Utilities Procurement, Vol I (3rd ed), 1358, which was opened before the court – which between them suggest that it is arguable that general European Union law obligations of objectivity, transparency and non-discrimination (all of which are accepted by this Court to be of application) should ensure that such reasons as are given include such information about a successful bid or bids as would permit a well- informed and diligent tenderer to understand the relative advantages and disadvantages of the respective bids. But (i) as Charleton J. observes in Oltech (Systems) Ltd v. Olivetti UK Ltd [2012] IEHC 512, para.8 – writing in a very different context, though his observations would appear to have a general resonance – “experience demonstrates that there is little that cannot be argued”, and (ii) even Professor Arrowsmith appears to shrink from stating that the arguable is the actual, confining herself to the following submission, at 1358:“[I]t is submitted that…a tenderer should be able to understand the assessment of the relative advantages and disadvantages of the respective bids for it to establish whether it has been fairly treated.”

    • Sanofi Aventis Ireland Limited v Health Service Executive [2018] IEHC 566 (McDonald J)

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      Region: Ireland

      Reasons need not be provided for criteria where the loser scored higher or the same as the winner; A failure to provide reasons might not lead to the annulment of the award decision if it would be disproportionate to do so;

      No reasons required if loser scores higher/equal

      “74. [It] is important to note that there is, in fact, no obligation on a contracting authority to provide reasons to a disappointed tenderer in respect of any criterion where the tenderer scored a higher mark than the successful candidate. This is clear from the decision of the Court of Appeal in Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform (No. 3) [2018] IECA 156 …

      75. Although not expressly so decided in the Word Perfect case, it would seem to follow, as a matter of logic, that the same principle should apply where both the unsuccessful tenderer and the successful candidate scored the same marks”

      Proportionality of the Remedy

      “144. In my view, it would be disproportionate to set aside the decision of the HSE to award the contract to Glaxo by reason of its failure to provide reasons in relation to these two sub-sub-criteria. In expressing this view, I have not lost sight of the argument made by Mr. McGrath on behalf of Sanofi that Glaxo has already had the benefit of remaining in situ since the expiry of the previous contract. Mr. McGrath submitted that in those circumstances, it would not be in any way disproportionate for the court to decide to set aside the award. However, in my view, the difference in marks between Glaxo and Sanofi in relation to these two sub-sub-criteria would not justify the court taking such a course. As noted above, the divergence in marks as between Sanofi and Glaxo would not be sufficient to make a difference to the award of the contract. The difference in marks was 1.5 in relation to regularity of batch supply and expiry date management. The difference in relation to packaging and labelling was four. That could not have made a difference to the award given that the much larger gap of 41 marks between the final score for Sanofi and the final score for Glaxo. Even if Sanofi were awarded full marks for these two sub- sub –criteria that would only add 11 extra marks to its existing score. The only way in which the scoring could conceivably have made a difference is in the event that Glaxo was awarded a score of zero or close to zero and Sanofi was awarded full marks or close to full marks. However, it is fanciful to suggest that there was any such possibility. In the circumstances, it seems to me that it would plainly be disproportionate to annul the award of the contract on the basis of the failure to provide reasons in respect of these two sub-sub-criteria.

      145. As mentioned above, I am mindful of the need to provide effective judicial protection to any tenderer in a procurement contest to ensure that the legal requirements are honoured by contracting authorities. However, it seems to me that this must be balanced against the requirement of proportionality identified by Finlay Geoghegan J. in Gaswise. It seems to me that the appropriate relief to be granted is, first, a declaration that Sanofi’s rights have been infringed and, secondly, an order pursuant to Regulation 9(1)(c) of the Remedies Regulations directing the HSE to provide full reasons (including the characteristics and relative advantages of the Glaxo tender) to Sanofi within a period of time which I will fix after hearing from the parties. I am of the view that such relief will provide an appropriate, adequate and proportionate remedy to Sanofi in respect of these two sub-sub-criteria which will vindicate the infringement of its rights. In para. 38 of his first affidavit Mr. Dempsey stated (and significant emphasis was placed on this factor at the hearing) that it is essential that Sanofi is provided with sufficient information by contracting authorities so that it is in a position to know and properly understand why it won or lost a competition, as the case may be. The provision of proper reasons now in accordance with an order pursuant to Regulation 9(1)(c) will assist Sanofi in improving the overall quality of future tenders.”

    • Killaree Lighting Services Limited v Mayo County Council [2024] IEHC 79 (O'Moore J)

      View Case

      Region: Ireland

      A failure, in the regret letter, to identify the decision reached concerning the award of the contract and identify the date on which the standstill period expired, constitutes a breach of the requirements of the Remedies Regulations concerning standstill letters

      Note the appeal in this case: Killaree Lighting Services Limited v Mayo County Council [2025] IECA. See further below.

      “73. While there is no obligation to identify the name of the successful tenderer, there is an obligation to inform tenderers “of the decisions reached concerning the award of the contract…”, and the paramount decision about which both successful and unsuccessful tenderers must be informed is the decision to award the contract to one of them. That is something that was not done by Mayo. In addition, while the standstill period prescribed by the tender documents and, indeed, by the Regulations, was known to all parties the “exact” date upon which this would expire could not have been known to [Killaree], as [Killaree] had been kept in the dark about the proposed date for the awarding of the contract.

      74. I therefore find that the letter of the 9th of October did not constitute a standstill letter within the meaning of the 2010 Regulations.”

      This case was appealed by Killaree but there was no cross-appeal by the Council against the finding that the standstill letter was deficient: see Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7 at [95]; see, also, at [98]: “[Because] Killaree had been excluded and therefore did not qualify for evaluation under the RFT, it was not entitled to the name of the successful tenderer and the characteristics and relative advantages of the tender selected. On the other hand, it was entitled to be informed of the decision reached concerning the award of the contract, the exact standstill period applicable to the contract, and a summary of the reasons for the rejection of its tender. In the High Court, the Council argued that the letter of 9 October was in substance a standstill letter since it had observed a standstill period after sending it on the basis that no contract was concluded until 27 October i.e. 18 days after the sending of the letter, thus exceeding the 14/16-day period required by the Regulations. Correctly in my view, the trial judge did not agree and on the appeal the Council has not contested the correctness of that conclusion” (Hyland J)

    • Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7 (Hyland J)

      View Case

      Region: Ireland

      Where ineffectiveness not ordered for deficient standstill letter, an alternative penalty must be imposed

      No mandatory ineffectiveness

      “Killaree is not entitled to a mandatory declaration of ineffectiveness because, as identified above, the scheme established by the Remedies Directive and Regulations requires both that a person establishes they have been deprived of the possibility of pursuing pre-contractual remedies and that the Regulation 5(1) infringement is combined with a substantive infringement of procurement rules that affected its chances of obtaining the contract. Because there was no substantive breach of the Public Authorities’ Contracts Regulations, Killaree did not meet the requisite conditions for a declaration of ineffectiveness and the conclusion of the trial judge in that regard remains intact.” [137] (Hyland J)

      Trial Judge correct not to make discretionary order of ineffectiveness

      “I conclude that the trial judge did not err in principle in the factors that he considered. Both the substantial impact of a declaration of ineffectiveness (on the successful tenderer, the other local authorities and the public), and the inaction of Killaree in the face of the letter of 9 October, mean Killaree is a long way from showing substantial unfairness. In those circumstances, Killaree has failed to establish the trial judge erred in refusing to grant a discretionary declaration of ineffectiveness.” [158] (Hyland J)

      An alternative penalty must be imposed where ineffectiveness not ordered

      “There is no doubt but that Regulation 13(1) is a very unusual provision. It effectively mandates a review body – in this case the High Court – to impose an alternative penalty if a declaration of ineffectiveness is not made where there has been a breach of Regulation 5(1). In this case the appeal has been brought and argued on the basis that the breach will be treated as a Regulation 5(1) breach, and the decision of the trial judge not to make a declaration of ineffectiveness has been upheld. As the trial judge himself acknowledges, that means the Court must impose an alternative penalty. That is an obligation placed upon the High Court by the Regulation. It is not optional. The legal basis for the Remedies Regulations is the European Communities Act 1972 and the obligations derive from Ireland’s membership of the EU.” [167] (Hyland J)

Analysis

The extent of reasons required to be provided depends on the particular circumstances

“It should also be borne in mind that the requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations” Case T-300/07 Evropaïki Dynamiki v Commission ECLI:EU:T:2010:372, [46]

Public law generally: “The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process” Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59, [2012] 3 IR 297, [66] (Fennelly J)

The purpose of the duty to provide reasons is (i) to allow a tenderer to know if it has grounds for review and (ii) allow the court/review body to carry out that review

“[The] reasoning followed by the authority which adopted the measure must be disclosed in a clear and unequivocal fashion so as, on the one hand, to make the persons concerned aware of the reasons for the measure and thereby enable them to defend their rights and, on the other, to enable the Court to exercise its supervisory jurisdiction” Case T-89/07 VIP Car Solutions SARL v European Parliament ECLI:EU:T:2009:163, [60]

“[The] contracting authority’s comments must be sufficiently precise to enable the applicants to ascertain the matters of fact and law on the basis of which the contracting authority rejected their offer and accepted that of another tenderer” Case T-165/12 European Dynamics Luxembourg SA v Commission ECLI:EU:T:2013:646, [87]

Courts have emphasised that there are limits to what has to be provided

“[The] Commission cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender” Case C-629/11P Evropaïki Dynamiki v Commission ECLI:EU:C:2012:617, [21])

See to similar effect, e.g., Case T-717/20 Lenovo Global Technology Belgium BV v European High-Performance Computing Joint Undertaking (EuroHPC) ECLI:EU:T:2022:640 at [162]. In that case, the General Court upheld the following reasons as being sufficient: “[The] evaluation committee took the view that, although, in the applicant’s technical proposal, ‘the mitigation strategies for most components [were] well defined and aligned to provide the agreed performance’, the fact remained that, ‘for critical components like the CPU and the GPU the proposed alternatives [were] not convincing as the tenderer heavily [relied] on the release timescale of the suppliers [and that] alternative solutions proposed [might] alter significantly the final performance and power consumption numbers’.”

A contracting authority is not obliged to provide a full copy of the evaluation report

“[The] contracting authority is not under an obligation to provide an unsuccessful tenderer, upon written request from it, with a full copy of the evaluation report” (see order of 20 September 2011 in Case C‑561/10 P Evropaïki Dynamiki v Commission, paragraph 25) Case C-629/11P Evropaïki Dynamiki v Commission ECLI:EU:C:2012:617, [22]

A detailed summary of how each detail was considered by the contracting authority is not required

“[The] Commission cannot be required to communicate to an unsuccessful tenderer, first, in addition to the reasons for rejecting its tender, a detailed summary of how each detail of its tender was taken into account when the tender was evaluated and, second, in the context of notification of the characteristics and relative advantages of the successful tender, a detailed comparative analysis of the successful tender and of the unsuccessful tender” (Case C‑629/11P Evropaïki Dynamiki v Commission at [21])

See to similar effect, e.g., Case T-717/20 Lenovo Global Technology Belgium BV v European High-Performance Computing Joint Undertaking (EuroHPC) ECLI:EU:T:2022:640 at [162]. In that case, the General Court upheld the following reasons as being sufficient: “[The] evaluation committee took the view that, although, in the applicant’s technical proposal, ‘the mitigation strategies for most components [were] well defined and aligned to provide the agreed performance’, the fact remained that, ‘for critical components like the CPU and the GPU the proposed alternatives [were] not convincing as the tenderer heavily [relied] on the release timescale of the suppliers [and that] alternative solutions proposed [might] alter significantly the final performance and power consumption numbers’.”

The provision of only scores is insufficient for qualitative criteria

The provision of scores was only was insufficient in Case T-300/07 Evropaïki Dynamiki v Commission ECLI:EU:T:2010:372

Despite the wording of the Irish Regulations (e.g. Regulation 6(5) of SI 130/2010 refers only to the provision of scores), the Irish courts have held that the provision of scores is insufficient: “the provision of scores alone could only constitute sufficient reason if the tenderer criteria revolved around price or other purely quantitative measurements” RPS Consulting Engineers Limited v Kildare County Council [2016] IEHC 113, [2017] 3 IR 61, [71] (Humphreys J)

In some cases where the losing bidder offered a lower price, courts have said that it is all the more important that sufficient reasons are provided (although it is not clear what, if any, higher obligation is imposed)

“[The] information concerning the award criteria was all the more necessary as the price offered by the applicant was lower than that offered by the successful tenderer” Case T-300/07 Evropaïki Dynamiki v Commission ECLI:EU:T:2010:372, [72] (appeal dismissed, Case C-560/10P Evropaïki Dynamiki v Commission, Order of 20 September 2011)

Case T-477/15 European Dynamics Luxembourg SA v European Chemicals Agency, ECLI:EU:T:2018:52 – court did not have express any additional or more rigorous reason-giving obligation where the applicant had provided a lower price

“In the tender context, in a case where the loser, in fact, submitted a lower priced offering than the winner, there is a particular need for it to be clearly demonstrated that valid objective reasoning was applied in the selection process” RPS Consulting Engineers Limited v Kildare County Council [2016] IEHC 113, [2017] 3 IR 61, [74] (Humphreys J)

“Information on the “characteristics and relative advantages of the successful tender” will be all the more necessary when the price offered by the unsuccessful tenderer is lower than that offered by the successful tenderer” Sanofi Aventis Ireland Limited v Health Service Executive [2018] IEHC 566, [47(c)] (McDonald J)

The adequacy of reasons is to be assessed on the basis of the reasons provided prior to the commencement of proceedings; but statements of reasons after the first statement may be taken into account

“However, the fact that the Parliament provided the reasons for that decision in the course of the proceedings does not compensate for the inadequacy of the initial statement of reasons for the contested decision. It is settled case-law that the reasons for a decision cannot be explained for the first time ex post facto before the Court, save in exceptional circumstances which, in the absence of urgency, are not present in this case” Case T-387/08 Evropaïki Dynamiki v Commission ECLI:EU:T:2010:377, [76].

“[If] the institution concerned sends a letter in response to a request from the applicant seeking additional explanations about a decision before instituting proceedings but after the date laid down in Article 149(3) of the Implementing Rules, that letter may also be taken into account when examining whether the statement of reasons in the case in question is adequate. The requirement to state reasons must be assessed in the light of the information which the applicant possessed at the time of instituting proceedings, it being understood, however, that the institution is not permitted to replace the original statement of reasons by an entirely new statement” Case T-89/07 VIP Car Solutions SARL v European Parliament ECLI:EU:T:2009:163, [73]

“It also follows from the case-law that, although it is apparent from the provisions referred to in paragraph 34 above that an adequate statement of reasons must be made, at the latest, when the second letter is sent, the purpose of that letter being to complement the initial statement of reasons as regards the factors which justified the decision to award the contract, the content of a third letter may also be taken into account when such a letter confirms the initial statement of reasons and is restricted to providing more detail on the grounds justifying rejection of the bid of the unsuccessful tenderer and award of the contract to the tenderer whose bid was ranked in first position. However, the grounds set out in such a letter must not undermine the statement of reasons provided in the first two letters (judgment of 15 September 2016, European Dynamics Luxembourg and Evropaïki Dynamiki v EIT, T‑481/14, not published, EU:T:2016:498, paragraph 82).” Case T-477/15 European Dynamics Luxembourg SA v European Chemicals Agency, ECLI:EU:T:2018:52, [35]

The Irish courts have held that reasons need not be provided for criteria where the loser scored higher or the same as the winner

“[While] a cogent case can be made that a full set of reasons covering disadvantages as well as advantages would advance the transparency of the procurement process, it would also add to the already significant difficulty and burdens faced by evaluation teams” Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform (No. 3) [2018] IECA 156, [42] (Hogan J); and approving the following statement of Barrett J in the High Court: “Notably, (i) the Regulations of 2010 do not require the disclosure of the content of the selected tender, but rather its “characteristics and relative advantages”, and (ii) there is no mention of disadvantages in the just-quoted text. It is true that there have been at least two United Kingdom cases, viz. Partenaire Ltd v. Department of Finance and Personnel [2007] NIQB 100 (an application for extension of an interim injunction which stayed a procurement process conducted by a contracting authority) and Lightways (Contractors) Ltd v. North Ayrshire Council, [2008] SLT 690 (an application for interim suspension of a decision by a local contracting authority to accept a particular tender) – neither of which cases was opened before the court but both of which are referenced in Arrowsmith, S., The Law of Public and Utilities Procurement, Vol I (3rd ed), 1358, which was opened before the court – which between them suggest that it is arguable that general European Union law obligations of objectivity, transparency and non-discrimination (all of which are accepted

“It is important to note that there is, in fact, no obligation on a contracting authority to provide reasons to a disappointed tenderer in respect of any criterion where the tenderer scored a higher mark than the successful candidate. This is clear from the decision of the Court of Appeal in Word Perfect Translation Services Limited v. Minister for Public Expenditure and Reform (No. 3) [2018] IECA 156 … Although not expressly so decided in the Word Perfect case, it would seem to follow, as a matter of logic, that the same principle should apply where both the unsuccessful tenderer and the successful candidate scored the same marks” Sanofi Aventis Ireland Limited v Health Service Executive [2018] IEHC 566, [74]-[75] (McDonald J)

A failure to provide reasons might not lead to the annulment of the award decision if it would be disproportionate to do so

“I am mindful of the need to provide effective judicial protection to any tenderer in a procurement contest to ensure that the legal requirements are honoured by contracting authorities. However, it seems to me that this must be balanced against the requirement of proportionality identified by Finlay Geoghegan J. in Gaswise. It seems to me that the appropriate relief to be granted is, first, a declaration that Sanofi’s rights have been infringed and, secondly, an order pursuant to Regulation 9(1)(c) of the Remedies Regulations directing the HSE to provide full reasons (including the characteristics and relative advantages of the Glaxo tender) to Sanofi within a period of time which I will fix after hearing from the parties. I am of the view that such relief will provide an appropriate, adequate and proportionate remedy.” Sanofi Aventis Ireland Limited v Health Service Executive [2018] IEHC 566, 145 (McDonald J)

A failure, in the regret letter, to identify the successful tenderer and identify the date on which the standstill period expired, constitutes a breach of the requirements of the Remedies Regulations concerning standstill letters

“While there is no obligation to identify the name of the successful tenderer, there is an obligation to inform tenderers “of the decisions reached concerning the award of the contract…”, and the paramount decision about which both successful and unsuccessful tenderers must be informed is the decision to award the contract to one of them. That is something that was not done by Mayo. In addition, while the standstill period prescribed by the tender documents and, indeed, by the Regulations, was known to all parties the “exact” date upon which this would expire could not have been known to Mayo, as Mayo had been kept in the dark about the proposed date for the awarding of the contract. I therefore find that the letter of the 9th of October did not constitute a standstill letter within the meaning of the 2010 Regulations.” Killaree Lighting Services Limited v Mayo County Council [2024] IEHC 79, [73]-[74].        

 

A failure to issue a proper standstill letter will not necessarily result in mandatory ineffectiveness; the conditions in Regulation 11(2)(b) of the Remedies Regulations must be satisfied

“Regulation 11(2) provides for a mandatory declaration of ineffectiveness in cases of Regulation 5(1) infringement where (a) the infringement has deprived the tenderer of the possibility of pursuing pre-contractual remedies and (b) is combined with an infringement with the Regulations that has affected the chances of the tenderer to obtain the contract.

… [Because Killaree has not identified any substantive infringement of the Regulations in respect of its exclusion for an abnormally low tender or lack of reasons, Killaree cannot obtain a mandatory declaration of ineffectiveness.” Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7, [8]-[9] (Hyland J)

Where ineffectiveness not ordered for a defective standstill letter, the review body must impose an alternative penalty

An alternative penalty must be imposed where ineffectiveness not ordered

“There is no doubt but that Regulation 13(1) is a very unusual provision. It effectively mandates a review body – in this case the High Court – to impose an alternative penalty if a declaration of ineffectiveness is not made where there has been a breach of Regulation 5(1). In this case the appeal has been brought and argued on the basis that the breach will be treated as a Regulation 5(1) breach, and the decision of the trial judge not to make a declaration of ineffectiveness has been upheld. As the trial judge himself acknowledges, that means the Court must impose an alternative penalty. That is an obligation placed upon the High Court by the Regulation. It is not optional. The legal basis for the Remedies Regulations is the European Communities Act 1972 and the obligations derive from Ireland’s membership of the EU.” Killaree Lighting Services Limited v Mayo County Council [2025] IECA 7 [167] (Hyland J)

 

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