The Bottom Line
- Procedural Perfection is Paramount: A Dutch court has reinforced that even seemingly minor administrative errors in a public tender bid, such as an incorrect signature format, can lead to immediate and irreversible disqualification.
- No Obligation to Allow Corrections: Contracting authorities are not required to offer bidders a chance to fix fundamental errors after the submission deadline, especially when the tender documents label the requirement as mandatory.
- Digital Signature Risk: Using a digital signature when a physical “wet ink” signature is specified is a significant risk. The court found that a simple pasted image of a signature was not a valid “equivalent” and could not be verified, justifying exclusion.
The Details
In a recent summary judgment, the District Court of Gelderland sided with the Radboud University Medical Center, a major Dutch hospital, which had excluded a bid from medical device giant Boston Scientific in a high-value European public tender. The disqualification was not due to price or quality, but to a series of administrative failures in how a key document—the European Single Procurement Document (ESPD)—was signed. The bid was signed digitally by an employee, but it failed to include their full name and title, the required power of attorney was missing, and it deviated from the explicitly required “print, sign, scan” procedure.
The court’s reasoning focused on the precise wording of the tender documents. The signing requirements were located in a section where the penalty for non-compliance was explicitly stated as shall result in exclusion. This was contrasted with other, less critical procedural rules where the documents stated non-compliance may result in exclusion. The court determined that any reasonably well-informed and diligent bidder would understand this “shall” clause as a strict, non-negotiable knockout criterion. Boston Scientific’s argument that the errors were minor and that exclusion was disproportionately formalistic was therefore dismissed.
This ruling underscores a critical principle in public procurement law: the burden of submitting a complete and compliant bid rests squarely on the bidder. The court affirmed that allowing one party to correct fundamental errors post-submission would violate the core principles of transparency and equal treatment, disadvantaging competitors who followed the rules meticulously. There is no general right to a second chance. The decision serves as a stark reminder for all CEOs and legal teams that in the competitive world of public tenders, precision in process is just as important as the product or price.
Source
Rechtbank Gelderland
