In procurement procedures, we regularly see bidders wanting to submit experience they have not gained themselves. A recent ruling by the District Court of Northern Netherlands illustrates the pitfalls of this.
It concerned a bidder who submitted a reference project that had been carried out by its former parent company. The bidder argued that the experience of the parent company should be attributed to it because it had already taken over a large part of the business.
The judge did not agree. Crucial was that the bidder had not taken over the entire business: the resources with which the service had to be performed were still in the name of the parent company. As a result, the bidder could not present the reference as its own experience. The bid was declared invalid.
This ruling emphasizes that when invoking references after an acquisition, the actual transfer is decisive. Not only paperwork, but also assets and staff must have actually been transferred. The contracting authority must critically assess this, and it is up to the bidder to demonstrate that the components required for that experience now actually belong to it. If that fails, the bid must be declared invalid.
Interesting about this ruling is that the judge also provides an overview of case law on similar cases. This makes the ruling not only relevant for this specific case but also instructive for contracting authorities and bidders in general.
For questions, contact mr. Menno de Wijs, attorney.
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