Health service procurement: draft statutory guidance - Section 6: reviewing decisions during the standstill period

This section explains how certain decisions made under the regime can be reviewed during the standstill period before they are finalised, and how a contract is awarded under certain procedures.

The standstill period must be observed once a notice of intention to make an award to a provider under direct award process 2, the most suitable provider process, or the competitive process has been published. This includes concluding a framework agreement or awarding a contract based on a framework agreement following a mini competition.

The standstill period follows a decision to select a provider and must end before the contract can be awarded. It gives time for any provider who might otherwise have been selected to provide the services to which the contract relates to make representations and for relevant authorities to consider and respond to those representations as appropriate. See the section below on receiving representations for further details.

The standstill period must last for a minimum period of 8 working days. The standstill period begins on the day the notice of intention to award a contract or conclude a framework agreement is published and, unless a written representation is made, ends at midnight of the 8th working day after the day the standstill period begins (see worked examples below). If any representations are received during this period, then the standstill period will remain open until the relevant authority provides any requested information, considers the representations, and makes a further decision.

Relevant authorities are expected to be aware of the process and timeline for the review of decisions under this regime and are expected to plan the arrangement of services accordingly. They are expected to ensure that the review of the procurement process can be completed, and the proposed contract awarded before the existing contract ends.

Care must be taken when calculating the end of the standstill period. The standstill period starts the day the publication of an intention to award a contract or conclude a framework agreement. Representations must be received before midnight on the 8th working day after that day.

The standstill period will end at midnight on the 8th working day, if:

• no representations are received by midnight on the 8th working day
• representations received do not meet the required conditions (set out below)

Where representations meeting the required conditions are received, the standstill period continues until the relevant authority:

• completes its review
• communicates its further decision (with reasons) to the provider who submitted the representations and to the provider to whom it intended at the beginning of the standstill period to award the contract to
• concludes it is ready to award the contract, or that it wishes to return to an earlier step in the procurement process or abandon the process

Where representations meeting the required conditions are received, the end of the standstill period must be at least five working days after the relevant authority has communicated its decision to the relevant providers. The minimum five working days’ notice allows for providers that remain unsatisfied about the response given by a relevant authority to their representations to seek the involvement of the procurement feedback service (see procurement feedback service).

Where the relevant authority’s decision is to award the contract (rather than return to an earlier step in the process or abandon the process), the standstill period should end when the relevant authority concludes it is ready to award the contract and there has been at least five working days since the relevant authority communicated its further decision. Where, within five working days of receiving the relevant authorities further decision, the provider requests an independent review from the procurement feedback service, the standstill period should continue, other than in exceptional circumstances. See the procurement feedback service section for further details on its process and how to request a review.

If the procurement feedback service accepts the request, the standstill period should not end until the relevant authority makes a further decision having considered the advice provided by the procurement feedback service. The relevant authority must again give at least five working days’ notice of its further decision before the standstill period can come to an end and the relevant authority proceeds to take forward its further decision.

The standstill period must end before a contract is awarded and a confirmation of the decision is published (or before returning to an earlier step in the process or abandoning a process). The transition of services must only take place after the standstill period has ended and the contract has been awarded.

Providers may make a representation to the relevant authority within 8 working days following the start of the standstill period (that is 8 working days starting with the day the intention to award notice has been published). Providers cannot submit a representation after that period, even if the standstill period has been extended in response to a representation from another provider.

The purpose of making a representation is to seek a review of the decision made, to determine whether a relevant authority has applied the regime correctly and made an appropriate procurement decision.

Relevant authorities are only obliged to respond to representations that meet all the following conditions:

• the representation comes from a provider that might otherwise have been a provider of the services to which the contract relates
• the provider is aggrieved by the decision of the relevant authority
• the provider believes that the relevant authority has failed to apply the regime correctly and is able to set out reasonable grounds to support its belief
• the representation is submitted in writing (which includes electronically) to the relevant authority within 8 working days of the start of the standstill period

When awarding a contract based on a framework agreement, such as following a mini-competition, only providers that were party to the framework agreement and took part in the mini-competition but were unsuccessful, or were excluded from the mini-competition, may make a representation to the relevant authority.

If they wish, relevant authorities may also respond to representations that do not meet the conditions above.

Relevant authorities must follow the relevant transparency requirements for the approach they take and must keep internal records of their procurement process (see transparency).

Example of calculating the minimum length of the standstill period during which representations can be made

Example A

The intention to award a contract notice is published on Thursday 7 November 2024. The standstill period begins 7 November 2024. Representations can be made for up to 8 working days after the day the standstill period begins. Therefore, the standstill period would end at midnight on Tuesday 19 November 2024.

Example B

The intention to award a contract notice is published on Friday 8 November 2024. The standstill period begins 8 November 2024. Representations can be made for up to 8 working days after the day the standstill period begins. Therefore, the standstill period would end at midnight on Wednesday 20 November 2024.

Example C

The intention to award a contract notice is published on Wednesday 13 November 2024. The standstill period begins 13 November 2024. Representations can be made for up to 8 working days after the day the standstill period begins. Therefore, the standstill period would end at midnight on Monday 25 November 2024.

In each of the examples, midnight is the zero point in time when we start to build up 24 one-hour periods of time to make up a new day.

Relevant authorities should ensure that appropriate internal governance mechanisms are in place to deal with representations made against procurement decisions. To this end, relevant authorities should, where possible, ensure that decisions are reviewed by individuals not involved in the original decision. Where this is not possible, relevant authorities should ensure that at least one individual not involved in the original decision is included in the review process.

If the relevant authority is considering representations on the same issue from multiple providers, it may consider these together if appropriate.

Where a representation is received within the 8 working days of the standstill period starting, the relevant authority:

1. must ensure that the aggrieved provider is afforded an opportunity to explain or clarify its representation(s) if they are not clear
2. must provide any information requested by the provider that the relevant authority is required to keep under the regime (see record keeping) as soon as possible, except where this:
   • would prejudice the legitimate commercial interests of any person, including the relevant authority
   • might prejudice fair competition between providers
   • would otherwise be contrary to the public interest

Please note this provision sits alongside existing information and data collection and disclosure obligations, including those in the Freedom of Information Act 2000 and Data Protection Act 2018, which relevant authorities should consider in relation to the information and data they receive during a procurement process for relevant health services.

3. is expected to provide an indicative timeframe for when the representation might be considered, and when the provider might reasonably expect a decision to be made

The aggrieved provider that made the representations is expected to respond promptly and concisely to questions from the relevant authority about the points it has made, and if it cannot respond within a reasonable timeframe then it is expected to provide a justification. We expect the relevant authority to allow sufficient time and opportunity for the provider that made the representations to respond to questions from the relevant authority. In the event that the provider fails to respond/communicate, then it is for the relevant authority to decide whether to complete its assessment of the representations and communicate their decision to the provider.

Where a relevant authority has completed the above steps, they must then:

4. review the evidence and information used to make the original decision, taking into account the representations made
5. consider whether the representation has merit (for example, it identifies that the process has not been correctly followed or brings to light information that has a bearing on the decision reached)

Where the relevant authority finds that a representation has merit (such as it identifies that the process has not been followed correctly or brings to light information that has a bearing on the decision reached), it must further consider whether this impacts on the intention to award a contract to the selected provider. It must then decide whether to:

• enter into a contract or conclude the framework agreement as intended
• go back to an earlier step in the selection process, either to the start of the process or to where a flaw was identified, rectify this, and repeat that step and subsequent steps (see repeating a step)
• abandon the procurement process (see abandoning a process)

The relevant authority must communicate the decision described above promptly and in writing to:

• the provider that made the representation
• the provider to which the relevant authority intended at the beginning of the standstill period to award the contract, or all providers with which the relevant authority intended at the beginning of the standstill period to conclude the framework agreement

The standstill period can only end once the relevant authority has reviewed its decision, shared its conclusion (in writing) with the relevant providers, and concluded that it is ready to award the contract, or that it’s going to return to an earlier step in the process, or abandon the process.

The relevant authority must allow at least five working days following the day on which they sent their response to the provider before the standstill period comes to an end. This time allows the provider to consider the response of the relevant authority, seek further clarifications, and to consider whether to request a further review by the Procurement Feedback Service (PFS). This time also allows the relevant authority to reconsider their decision and make any subsequent decisions if necessary. The relevant authority must communicate any such further decision in writing to the provider (as outlined above).

If a PFS review is requested and accepted, then the standstill period would usually continue until after the PFS has given its advice and the relevant authority has made a further decision in light of that advice.

If a provider remains unsatisfied about the response given by a relevant authority to their representations, then that provider may seek the involvement of the PFS. The PFS may consider whether the relevant authority complied with the regulations and may provide advice to the relevant authority. The relevant authority should then make a further decision about how to proceed.

The regulations review process of the procurement feedback service

If a provider wishes to request the Procurement Feedback Service (PFS) to consider their representation further, then they must submit their request within five working days of receiving the relevant authority’s decision following the relevant authorities review of their representation. If the provider submits a request for advice from the PFS, the relevant authority will be notified, and the relevant authority should:

• keep the standstill period open for the duration of the panel’s review
• make a further decision once it has considered the independent expert advice from the PFS

In exceptional circumstances, the relevant authority may conclude that it is necessary to enter a new contract before the PFS can complete its review and share its advice. In those circumstances, the relevant authority is expected to note the advice of the PFS for the next time they use the regulations to arrange health services.

Where multiple providers seek the involvement of the PFS in relation to the same procurement process, the PFS may choose to address the points raised by each provider individually or consider all the points together. The standstill period should continue until the last advice is provided (unless in exceptional circumstances).

If the provider does not submit their request to the PFS within the five working day period of receiving the relevant authority’s decision following the relevant authorities review of their representation, or the PFS does not accept the request for advice, then the relevant authority can bring the standstill period to an end and proceed to award the contract to their chosen provider.

Urgent contract modifications during the standstill period

Where the relevant authority is awaiting the advice of the PFS during the standstill period, the relevant authority may urgently modify the existing contract in accordance with regulation 14(3), subject to all the below applying:

• there is an existing contract for the health services to which the proposed contracting arrangement relates, and the relevant authority considers that the term of the existing contract is likely to expire before the end of the standstill period
• the relevant authority considers it necessary or expedient to modify the existing contract prior to the proposed contract taking effect to ensure continuity between the existing contract and award of the proposed contract
• the relevant authority considers that it is not possible to satisfy the requirements of regulations 7 to 13 before the term of the existing contract expires

The relevant authority may only extend the length of the existing contract and must not otherwise modify the contract. The relevant authority is expected to only extend the contract for as long as necessary to ensure continuity between the existing contract and the proposed contract.

Outcome of procurement feedback service review

Once the relevant authority has considered the advice of the PFS, it may make a further decision, to be its final decision, replacing the previous decision, to either:

• enter a contract or conclude the framework agreement as intended
• go back to the start of the procurement process or to the step where a flaw was identified, and repeat that step and subsequent steps (see repeating a step in a procurement process)
• abandon the procurement (see abandoning a procurement process)

The relevant authority must share this further decision promptly, in writing, with reasons, with the provider who made a representation and the provider to which the relevant authority intended, at the beginning of the standstill period, to award the contract. The relevant authority must set out the outcome and a full and transparent justification for their decision, and it is expected that this will include whether they changed their original decision because of the advice of the PFS. After sharing the further decision, the relevant authority must wait at least five working days before concluding it is ready to award the contract and bring the standstill period to an end, or before it returns to an earlier step in the process, or before it abandons the procurement.