The Bottom Line
- Proactivity is mandatory, not optional. Companies bidding on public tenders must formally question any ambiguities or perceived flaws in the tender documents during the official Q&A period.
- Silence is acceptance. Failing to raise issues in a timely manner will likely cause a court to dismiss a subsequent legal challenge, a principle known as forfeiture of rights or estoppel. You cannot wait to see if you win before pointing out flaws in the rules.
- Past performance doesn’t count unless specified. Contracting authorities cannot consider prior positive experiences with a bidder during evaluation unless it’s an explicit criterion, ensuring a level playing field for all participants.
The Details
In a recent summary proceeding, a Dutch cooperative of consultants challenged a municipality’s decision to award a public contract for professional services to a competitor. The cooperative, which had a long-standing working relationship with the municipality, finished last out of five bidders and argued the tender process was fundamentally flawed. It claimed the pricing criteria were unclear and that the evaluation committee was biased and had unfairly ignored its successful track record with the municipality.
The District Court of North Netherlands rejected all claims, delivering a stark reminder on the procedural discipline required in public procurement. The core of the decision rested on the legal principle of rechtsverwerking (forfeiture of rights). The court noted that the tender procedure included two formal rounds for bidders to submit questions. The plaintiff, however, failed to seek clarification on the very pricing and invoicing rules it later challenged in court. Citing established EU case law (Grossmann), the judge ruled that bidders are expected to act proactively. By remaining silent and waiting until after the negative outcome, the company had forfeited its right to dispute those specific aspects of the tender.
The court also dismissed the claims regarding the quality assessment and committee bias. The argument that the municipality should have factored in its positive history with the cooperative was rejected as contrary to the core procurement principles of equality and transparency. An evaluation must be based solely on the information provided in the submitted bid documents, not on pre-existing knowledge, to ensure all bidders are treated equally. Furthermore, the court found no credible evidence that the evaluation committee was biased, deeming an internal email about the transition to be a logical communication rather than proof of a predetermined outcome.
Source
Rechtbank Noord-Nederland
