Public procurement regulation and law in the Netherlands

October 2018

1. Where can one find public procurement notifications for the Netherlands?

2. What are the relevant thresholds for the applicability of the Procurement Act (Aanbestedingswet 2012) for the period 2018-2019?

Contracting authority

Deliveries and services

Works Contracts

Concessions

Social and other specific services

Central government

EUR 144,000

EUR 5,548,000

EUR 5,548,000

EUR 750,000.

Decentralized government and public law institutions

EUR 221,000

EUR 5,548,000

EUR 5,548,000

EUR 750,000.

Special-sector company

EUR 443,000

EUR 5,548,000

EUR 5,548,000

EUR 1,000,000.

All amounts mentioned above are in EUR.

It should be noted, however, that even below these thresholds some tendering obligations are still applicable.

The Proportionality Guide (gids proportionaliteit) (which the government is, in principal, obliged to obey) makes clear that a service assignment with a value of more than EUR 20 000 should be awarded by the central government following a competition in a multiple private private tender procedure (meervoudig onderhands) and assignments with a value of EUR 100 000 or more after a national-wide public tender procedure (national openbaar). For other tender agencies, the thresholds are between EUR 70 000 and EUR 175 000, respectively. Furthermore, if an interest is expressed by other Member States, some kind of tender obligation may exist.

Pursuant to Art. 2.24 of the Procurement Act (Aanbestedingswet 2012), some contracts are excluded from the Procurement Act (Aanbestedingswet 2012). For example, services for arbitration and services related to research.

3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?

Pursuant to section 2.2.1 of the Procurement Act (Aanbestedingswet 2012), the contracting authority is free to choose among the open procedure (Art. 2.26 Procurement Act), the restricted procedure (Art.2.27 Procurement Act), competitive dialogue (Art. 2.28 Procurement Act) and two types of negotiated procedures: the competition procedure with negotiation and prior notification Art. 2.30 Procurement Act) and the negotiated procedure without prior notification (Art. 2.32 Procurement Act).

  • The open procedure (Art. 2.26 Procurement Act (Aanbestedingswet 2012)) and the restricted procedure (Art. 2.27 Procurement Act (Aanbestedingswet 2012))) can always be applied. Contracting authorities are free to choose the open and the restricted procedure. The choice between public and non-public procurement is generally based on: the type of product, the number of suppliers, the requirements to suppliers, the scope of the specifications, the offer costs and the sensitivity of information laid down in the contract.
  • The competitive dialogue (Art. 2.28 of the Procurement Act (Aanbestedingswet 2012)) can be followed in the following instances:
    • With regards to works, supplies or services which meet one or more of the following criteria (Art. 2.28, para. 1 of the Public Procurement Act (Aanbestedingswet)):
      • it has proved impossible to meet the needs of the contracting authority without modifying easily available solutions;
      • it includes design or innovative solutions;
      • the contract concerned cannot be awarded without prior negotiation due to specific circumstances related to its nature, complexity or legal and financial conditions or because of the associated risks;
      • the technical specifications cannot be determined sufficiently precisely by the contracting authority on the basis of a standard, European technical assessments, a common technical specification or a technical reference framework within the meaning of points 2 to 5 of Annex VII to Directive 2014/24. / EU;
    • For works, supplies or services when only irregular or unacceptable tenders have been submitted in a public or restricted procedure.
  • The competition procedure with negotiation (with prior notification) (Art. 2.30 Procurement Act (Aanbestedingswet 2012)) can be followed in the same instances as the competitive dialogue as laid down in article 2.28 of the Public Procurement Act (see above).
  • The negotiated procedure (without prior notification) can be carried out (article 2.32 – 2.36 of the Procurement act (Aanbestedingswet 2012)):
    • if no tenders, no suitable tenders or no applications have been submitted in response to an open or restricted procedure, and the contract is not substantially modified, and a report of the original tender procedure has to be sent to the European Commission at the latter’s behest.
    • if the performance can only be provided by a particular contractor for technical or artistic reasons, or due to the protection of exclusive rights.
    • if urgent and compelling reasons (which were not foreseeable and not caused by the contracting authority) do not allow the implementation of an open or restricted procedure with prior publication.

4. Which decisions of a contracting authority can be appealed?

  • All decisions concerning a procurement procedure that conflict with the Procurement Act (Aanbestedingswet 2012). For example:
    • the decision not to organize a public procurement procedure (Art. 4.15 of the Procurement Act (Aanbestedingswet 2012));
    • the decision in a specific tender procedure (open procedure/restricted procedure/negotiated procedure etc.) to award a public contract (Art. 1.4 of the Procurement Act (Aanbestedingswet 2012));
    • the choice of the contracting authority allowing specific undertakings to participate in a restricted procedure (Art. 1.4 of the Procurement Act (Aanbestedingswet 2012));
    • disproportionate provisions in the tender documents (Art. 1.10, 1.13, 1.16 of the Procurement Act (Aanbestedingswet 2012));
    • the contract award decision (Art. 2.127 of the Procurement Act (Aanbestedingswet 2012));
    • the retirement of a tender (Art. 2.132 of the Procurement Act (Aanbestedingswet 2012)).

5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?

  • the decision not to apply a public procurement procedure:
    • six months after signing the agreement, if the contract is awarded without a prior publication notice published in the Official Journal of the European Union (Art. 4.15 (2b) of the Procurement Act (Aanbestedingswet 2012));
    • 30 days after signing the agreement, if the contract is awarded with a prior publication notice published by the Commission (Art. 4.15 (2a) of the Procurement Act (Aanbestedingswet 2012));
    • the contract award decision: 20 days after the contract award decision (Art. 2.127 (3) of the Procurement Act (Aanbestedingswet 2012));
    • the time limits for other decisions such as the decision to apply a specific tender procedure or disproportionate provisions are dependent on the provisions in the tender documents. However, economic operators must appeal against such decisions as soon as possible. If they wait until the contract award decision, there is a fair chance that this will lead to their appeal being precluded.

6. How long is the standstill period?

  • The standstill period starts with the announcement of the contract award decision and expires after 20 days (Art. 2.127 (3) of the Procurement Act (Aanbestedingswet 2012));
  • the standstill period does not apply to (national, restricted) procedures in which a prior publication notice is not mandatory (Art. 2.127 (4a) of the Procurement Act (Aanbestedingswet 2012)).

7. Which review bodies exist?

  • The district court;
  • CBB (“College van Beroep voor het bedrijfsleven”) (in case of public transport contracts);
  • the Complaints Board of the contracting authority itself (not binding); and
  • the Commission of Procurement experts („de Commissie van Aanbestedingsexperts”) (not binding).

8. Are there any filing fees for an appeal?

  • The filing fees in preliminary relief proceedings amount to EUR 608 (Wet griffierechten burgerlijke zaken, Art. 3).
  • there is a possibility that the winning applicant may be reimbursed the (entire) fee.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?

  • An application for an interim injunction at the district court is necessary and has a suspensive effect. A party that does not agree with the contract award decision needs to bring preliminary relief proceedings at the district court during the standstill period, subject to a limitation of actions. It should be noted, however, that if a party does not agree with the court’s judgment in the first instance and decides to appeal against it, this appeal does not have a suspensive effect.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC

  • Annulment of the contract (Art. 4.15 of the Procurement Act (Aanbestedingswet 2012));
  • Shortening (by the national court) of the duration of the contract (Art. 4.19 of the Procurement Act (Aanbestedingswet 2012));
  • Administrative penalties imposed by the ACM (“Autoriteit Consument en Markt”), with a maximum limit of 15% of the contract value (Art. 4.21 of the Procurement Act (Aanbestedingswet 2012)).

11. To which extend can procurement contracts be amended after awarding?

Chapter 2.5 of the Procurement Act (Aanbestedingswet) deals with the amendment of a procurement contract after awarding. Art. 2.163g articulates that the basic premise of amendment is that a procurement contract can only be amended insofar the amendment does not constitute a material change (wezenlijke wijziging). Consequently, Art. 2.163a stipulates that there exists an exhaustive list of permitted changes, the non-substantial amendment (niet wezenlijke wijzigingen) which are set out in Art. 2.163a – 2.163f of the Procurement Act (Aanbestedingswet 2012). Thus, a procurement contract can be amended to the extent that the amendment is non-substantial (niet wezenlijke wijziging).

Permitted changes, which are not considered substantial, are:

  • When three cumulative requirements are met: 1) the amendments are below the relevant thresholds, 2) the changes are less than 10% of the contract value for works or services and concessions and 15% for works contracts, and 3) the general nature of the contract is not changed (Art. 2.163b Procurement Act).
  • If there is a contractual revision clause. This clause must be drafted in clear, precise and unambiguous terms. Three cumulative criteria need to have been met: 1) the wording will have to indicate precisely what part of the assignment will change, and what the change entails; 2) the revision clause must be written clearly; and 3) the general nature of the assignment may not change (Art. 2.163c Procurement Act).
  • In case of additional work. This occurs when four cumulative requirements are met: 1) the necessity (and therefore not the wish) must arise during the execution of the assignment; 2) the additional work must not be foreseen in the original tender documents.; 3) a replacement of the contractor is not possible for economic or technical reasons, and would lead to significant inconvenience or significant cost increases for the contracting authority; and 4) the amount that accompanies the change may not exceed 50% of the original order value (Article 2.163d Procurement Act).
  • In case of unforeseen circumstances. Here three requirements must be met: 1) modification is necessary (circumstances which the contracting authority could not foresee when tendering, and which must be external); 2) the general nature of the contract may not be changed; and 3) the amount that accompanies the change may not exceed 50% of the original order value (Art. 2.163e Procurement Act).
  • Substitution of the contractor. The substitution must be a result of four cumulative conditions: 1) as a result of restructuring; 2) the legal successor must meet the original eligibility requirements; 3) the legal successor must actually take the place of the original contractor (he must take over the mutual rights and obligations); and 4) the legal succession must not have the purpose of circumventing a tendering obligation. (Art. 2.163f Procurement Act).

12. Is it mandatory or voluntary to use e-procurement or e-signatures?

Pursuant to Art. 2.52 Procurement Act 2012 (Aanbestedingswet) it is mandatory to completely carry out European procurement procedures through e-procurement. The activities covered by this obligation range from the pre-award phase (e.g. publication of contract notices, invitation to submit a tender, submission of procurement documents, and additional information, as well as submission of tenders), to the post-award phase (i.e. publication of contract award notices). None of these e-procurement obligations apply to national procurement procedures. In exceptional cases, the contracting authority may offer tenderers the option of using non-electronic means. It concerns the following situations: no publicly available funds due to the specialized nature the procurement; required applications not freely available; specialized office equipment needed; and for submission documents submission of physical or scale models. Furthermore, when wishing to prevent the security of those electronic means being breached; and protection of the sensitive nature of the information.

The use of e-signatures has been mandatory since 1 July 2017. However, the type of e-signature requested in a procurement procedure is at the discretion of the contracting authority. All forms of e-signing are permitted under Dutch law, as long as the type of e-signature conforms with the eIDAS Regulation (910/2014) and is made explicit in the tender documents beforehand in order to avoid ambiguity.

Picture of Petra Heemskerk
Petra Heemskerk
Partner
Amsterdam