Last month, we successfully represented a contracting authority in summary proceedings before the District Court of The Hague. The central question was whether a delivered machine complied with the knock-out requirements set out in the tender. However, beneath this lay a more fundamental legal question: how does the court interpret technical requirements?
When interpreting tender documents, interim relief judges do not look at what the contracting authority intended, but at how a reasonably informed and normally diligent tenderer would have objectively understood the requirement. The wording of the requirement is decisive in this respect, read in the context of the tender documentation as a whole, but without room for subjective interpretation. That standard is fully determinative of the outcome in this case.
The tender contained several requirements that the bidder relied on in raising a dispute. One example: a requirement stipulated that the temperature in the machine had to be controllable “within a range of 18 to 45 degrees Celsius with a stability of +/- 1 degree Celsius.” The bidder interpreted this as an obligation involving only one direction of regulation: heating. The machine it had designed and supplied was not capable of active cooling. The contracting authority therefore concluded that, if the ambient temperature was 21 degrees Celsius, the machine could not meet the required temperature range. In other words, the machine did not guarantee that the prescribed range could always be achieved.
The interim relief judge ruled briefly and decisively. Anyone seeing a range from 18 to 45 degrees Celsius must understand that this implies regulation in two directions. “Controllable within a range” means that the machine must be able to regulate both upwards and downwards. That follows from the wording itself. There is no scope for an interpretation limited to one direction of regulation.
The bidder’s argument that active cooling is not standard practice in the electrospinning market does not hold. The court held that, in interpreting tender requirements, the wording must be assessed according to objective standards, not market practice. A contracting authority is entitled to impose requirements that go beyond market standards, provided that they are formulated transparently. That was the case here.
This judgment makes clear that, when interpreting technical requirements, the text is central, assessed through the lens of a reasonably informed and normally diligent tenderer. Where a bidder has doubts about the scope of a technical requirement, those doubts should be turned into a clarification question rather than an assumption.
The case also illustrates the limited remedial function of the “workable solution” clause. That clause allows for pragmatism, but not for the structural repair of a machine that fundamentally fails to comply. A party that wins a tender on the basis of a bid that underestimates the technical requirements does not thereby acquire a right to a second chance.
Please feel free to contact Menno de Wijs or Hieke van Druten, Public Procurement Law attorneys.
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