Procurement-related disputes are an important part of our daily practice. They concern almost all aspects of Directives 2004/17/EC and 2004/18/EC and the new 2014 Directives, the (revised) 2012 Procurement Act, the Works Procurement Regulations (Aanbestedingsreglement Werken, ARW) 2016, the Utilities Sectors Procurement Regulations (Aanbestedingsreglement Nutssectoren, ARN 2016), and the Guide on Proportionality (Gids Proportionaliteit).
We analyse the substantial amount of case law continually being published on these regulations in order to keep track of the latest legal matters in this field.
We advise on issues which are important for valid tenders, such as strategic tenders, tenders with equivalent products, relying on the skills of third parties or a combination of the above.
However, our work in this legal field consists mainly of instituting interim injunction proceedings, and these days, the submission of cases to the Commission of Tendering Experts (Commissie van Aanbestedingsexperts).
Frequent issues in this context include validity, tenders which do not comply with specifications, fulfilment of selection criteria or suitability requirements such as certificates, experience-related requirements, turnover-related requirements, the model non-competition statement (K-verklaring), explanations of awarding criteria, negotiations after awarding, fundamental changes, Best Value Procurement and the existence or lack thereof of the right to re-tender.
Prior to interim injunction proceedings we discuss whether the case, in our opinion, has a realistic chance of success. In view of the reluctance of judges in preliminary relief proceedings to take on cases, we often advise clients not to go ahead with proceedings.