Claire Nijssen
Lawyer
Deeply Rooted in public procurement law
Public procurement processes come in various forms: private tenders, national tenders, and European tenders. In border regions such as Limburg, cross-border effects may also come into play. Public contracts exceeding a certain threshold must be subject to a tendering process, which is mandatory for all contracting authorities. These authorities are required to comply with the Public Procurement Act 2012 and the Guide to Proportionality. Private organizations, on the other hand, have the option to choose whether to proceed with a tender process.
A Selection of Our Focus Areas within this Expertise
Strict Requirements in Public Procurement Law
Public procurement law involves numerous stringent formalities. There are strict conditions that bidders must meet, or they risk forfeiting their rights. Submissions must also adhere to specific requirements, or they may be excluded from the tender process. Additionally, the (preliminary) award must meet certain justification criteria. A public procurement lawyer can advise you on the most effective way to submit a bid or analyze whether challenging a rejection through summary proceedings has a reasonable chance of success. Dispute resolution is not common in public procurement law, given the numerous formal requirements. A submission either meets the criteria or it does not—there is no middle ground.
Tender Submission
Each submission to a tender must be made with great care. Any bid that contains an error or has forgotten an attachment will be dismissed. Correction of mistakes is (almost) never allowed. On platforms such as TenderNed or Negometrix, the closing time may sometimes differ from the one stated in the guidelines. It is crucial to pay close attention to the closing time; otherwise, the digital submission portal will be closed, and your bid will not be accepted.
Forfeiture of Rights
Is something unclear in the tender guidelines? Does the contracting authority require an impossible condition or a certificate that cannot be obtained (in time)? In such cases, raise an objection immediately. Request clarification in the Q&A section and ask for the impossible requirement to be removed. Almost every set of tender guidelines specifies that bidders must immediately report any ambiguities or errors. If this is not done promptly, the right to raise an objection is forfeited. Complaints cannot be made later, even to the court.
Objection to Preliminary Award
Once the contracting authority has evaluated all submissions, the winning bidder will receive notification of the preliminary award. At this point, the Alcatel standstill period of 20 days begins. Bidders who have submitted valid bids but were not selected will also receive notification. Each rejection must include a justification explaining why the bidder scored lower than the winner. During the (extended) Alcatel period, it is possible to request further clarification from the contracting authority regarding the bidder’s own score and evaluation criteria.
Summary Proceedings (Kort Geding)
Disagree with the score you received? Are there signs that the winning bidder submitted a manipulative tender, with unrealistic pricing in some areas? In such cases, you can initiate summary proceedings through a public procurement law specialist (procurement lawyer). Act quickly, within the Alcatel standstill period. It is possible to request the suspension of the procurement process and seek an injunction to prevent the award from being granted to the ‘winner.’
Substantive Proceedings (Bodemprocedure)
Sometimes, legal arguments may arise after a tender process has concluded, even after the contracting authority has already signed a contract with the winning bidder. In such cases, the options for challenging the contract and/or seeking compensation through substantive proceedings are limited. Your lawyer can assess the chances of success in pursuing such a claim.
"You need the ball to take a shot, and you need to take a shot to score, but that’s obvious."
