A bidder accuses an evaluation committee of having acted outside the pre-established evaluation framework by failing to recognize the “added value” of his proposal. An interesting detail: this concerned a contract not subject to public procurement obligations. As a result, Part 2 of the Public Procurement Act does not apply. What does apply instead?
Since this concerns a contract not subject to public procurement obligations but tendered by a municipality, the court held that two principles are essential: (i) reasonableness and fairness, and (ii) the general principles of proper administration.
These principles require the municipality to:
The court clearly articulated the difference between the framework applicable to regular procurement procedures and to contracts not subject to procurement obligations:
“This framework of review largely corresponds with that applicable in the assessment of tenders in procurement cases. The difference, however, is that this framework does not derive from procurement rules and procurement principles, but from the requirements of reasonableness and fairness and the general principles of proper administration.”
In short: even outside procurement procedures, a municipality must act with due care and provide clear reasons for accepting or rejecting proposals. Any deviation from the announced framework or insufficient reasoning may give rise to reassessment or even annulment of the procedure.
Read the full judgment here.
For further inquiries, please contact Menno de Wijs, Attorney at law in Public Procurement law.
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