In public procurement procedures, bidders are expected to adopt a proactive attitude. This has once again been confirmed in a recent judgment of the District Court of Oost-Brabant.
The municipality argued that the bidders had forfeited their rights. In its procurement documents, the municipality had stipulated that interested parties must report any defects in the procedure in a timely manner, and no later than ten days before the deadline for submitting applications. The bidders raised their objections only after the selection decision had already been announced.
The court ruled that the bidders should have brought their objections forward in due time. In doing so, the court referred not only to the well-known Grossmann case law, under which bidders are expected to adopt a proactive attitude, but also to the procurement documents in which this proactive conduct was expressly required. These objections were therefore submitted too late.
A predictable ruling? What is noteworthy is the exception the bidders invoked.
They had previously raised questions about the very issue at hand—but in an earlier procurement procedure by the same contracting authority. That earlier (attempted) procurement had been withdrawn, after which the contracting authority relaunched the tender with several modifications. The objections were therefore already known, the bidders argued.
The court did not accept this argument. The bidders should have raised the same objections again in this new (second) procurement procedure. They cannot “piggyback” on questions submitted during the previous and withdrawn procurement procedure for the same contract.
For questions, please contact mr. Menno de Wijs, attorney.
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