Governments: largest commissioning authorities in construction
In all aspects, governments are the largest commissioning authority in construction. Consequently, procurement law plays an important role in our construction law practice. Especially as many semi-public organisations, such as schools, hospitals and universities must comply with procurement requirements when placing contracts in the market. At Rozemond Advocaten, we are therefore very much at home in procurement law.
Public contracts above the European threshold value automatically become subject to a European tendering procedure, in accordance with Part 2 or Part 3 of the Dutch Public Procurement Act. But even spending below the thresholds is always subject to some form of tendering regulations whether a national procurement procedure or a multiple private tender procedure. In addition to the Dutch Public Procurement Act revised in 2012 and the Proportionality Guide, we are often dealing with the Works Procurement Regulations (ARW) 2016 and the Utility Sectors Procurement Regulations (ARN) 2016. Even a contract awarded directly – if permitted – is never completely free from regulations. This is unavoidable because most contracting authorities are also bound by general principles of good governance when agreeing contracts.
Support for drafting fair assessment award criteria
In our daily work, procurement law comes up when our clients, often contractors, want to bid for a government contract, or when contracting authorities seek advice on drafting the tendering procedure. In the latter case, we provide support for the tendering procedure. In the former case, we assist those responding to an invitation to tender if they are wrongly in danger of losing out. For example because their bid is not assessed fairly according to the award criteria, or these have been incorrectly declared invalid. This regularly leads to preliminary relief proceedings in court, but we also always keep an eye out for alternative methods to help our clients accomplish their goal. For instance, by initiating a complaints procedure with the Committee of Procurement Experts.
We also often litigate for market players who have won a tender but are faced with an objection to the award decision from a competitor. In that case, we usually pursue an ‘intervention’ in the preliminary relief proceedings which have already been initiated. That means that we intervene in the proceedings between the objector and the contracting authority, representing our client’s interests as best we can. In fact, we often also advise contracting authorities in such proceedings. These are often non-construction tendering procedures, where we have already conducted high-profile cases for organisations such as schools, public health services, and local and central government bodies.
Our procurement law focus means that we also conduct more unusual proceedings, such as proceedings on the merits (to annul privately awarded contracts or to obtain damages), WOB procedures (under the Government Information (Public Access) Act), proceedings in the Court of Appeal and even cassation at the Supreme Court. Furthermore, we also know our way to the various European authorities, such as the European Commission’s complaints procedure.
Support when preparing and submitting tenders
Besides litigation, Procurement Law is also an important part of our advisory practice. For example, we help tender participants, also known as bidders or candidates, during the drafting phase and when submitting their tender. We advise about matters such as completing and submitting their bidder’s statement and asking questions about the tender and contract terms and conditions and their proportionality. Asking the right questions is key. This can help prevent bidders from forfeiting their rights based on the infamous Grossmann case law. Furthermore, this results in less ambiguity about the requirements and terms and conditions that will apply during the execution of the contracts.
We are also available to advise about procurement law during contract execution. This may include cases where the requirements and/or terms and conditions of the work or the service to be provided need to be changed. With the 2014 European Directives and the subsequent amendments to the 2012 Dutch Public Procurement Act, the Procurement Act revised as of 1 July 2016 has several legitimate options for modifying contracts. These are contained in Sections 2.163a to 2.163g of 2012 Act, which also codifies the so-called Pressetext case law. If there is reason to modify a contract’s requirements or terms and conditions during its execution, then commissioning authorities as well as contractors often need advice on the options. To this day, we have always been able to advise them so that the assignment, with the necessary changes, can be fulfilled without any procurement law problems.
Visible commitment to research and legislation
Finally, our commitment to procurement law is visible in the jurisprudence and even in the legislation. Through our articles, publications and by giving lectures and talks, we share our view on the interpretation and the (desired) development of procurement law. We also share our opinions, when requested or otherwise, with politicians and administrators, to serve them – and above all, the users of procurement law – in the legislative process. This regularly leads to interesting and fruitful exchanges of views at all levels.
Procurement law specialists
We manage our client’s expectations and we respond quickly. We give realistic advice and produce workable agreements and contracts. We aim to prevent and resolve legal problems with a personal touch.