Not all public contracts are subject to procurement obligations. For example, an exception applies to contracts in the field of defence and security. But what if a contracting authority invokes that exception, while a market party has doubts about its applicability?
In this case, the issue was whether the Police were required to tender a contract for investigative software. The Police relied on Article 2.23(1)(e) of the Dutch Public Procurement Act 2012 (Aw 2012), which provides:
“By way of derogation from Articles 2.1 through 2.6a, the provisions of Part 2 of this Act shall not apply to public contracts and design contests:
(…)
(e) that have been declared secret, or whose performance must, in accordance with applicable statutory and regulatory provisions, be accompanied by special security measures, or where the protection of the essential interests of the Netherlands requires this and such protection cannot be ensured by less intrusive measures.”
According to the District Court, this exception must be applied restrictively. The court held that an interpretation of the Act consistent with the EU Directive means that the Police cannot simply rely on the fact that a contract has been declared secret to avoid a tender procedure. The court reviews the Police’s actions to a certain extent: it does not substitute its own assessment of the (security) interests at stake, but assesses whether, in light of all circumstances, the Police could reasonably have reached the decision to declare secrecy. The court also examines whether less intrusive measures would have been possible.
This means that a market party may simply contest the secrecy declaration, after which the contracting authority must substantiate its reliance on it. Ultimately, the court held that the Police had validly relied on secrecy.
The market party also pointed to alternative procurement methods, such as a restricted procedure or imposing confidentiality obligations on bidders. It further argued that the contract could fall within the scope of the Defence and Security Procurement Act (ADV). The court did not follow this reasoning. According to the Police, confidentiality agreements and selection procedures provide only an illusion of security: once sensitive information has been shared, the damage cannot be undone.
The court accepted this reasoning. Even in restricted procedures, there remains a risk of information leaking. In this case, secrecy and direct award provided a greater degree of certainty, the court found.
This judgment underlines that the exception in Article 2.23(1)(e) of the Dutch Public Procurement Act 2012 is not a carte blanche. A contracting authority must properly substantiate why secrecy is necessary and why less intrusive measures are insufficient. At the same time, the judgment shows that the court applies a restrained review: if the interests are genuine and the balancing of considerations is carried out carefully, reliance on this exception will be upheld.
Read the full judgment here: ECLI:NL:RBDHA:2025:12619
For further inquiries, please contact Menno de Wijs or Sonja Geldermans.
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