The hardware to be supplied may consist of no more than three modules – this was stated literally in the municipality’s tender specifications. Too specific, according to two bidders.
According to the municipality, no specific brand was mentioned, and the requirement was based on practical experience and supported by expert advice. However, one of the bidders argued—supported by evidence—that in practice, only Signify could meet the requirement. As a result, the municipality effectively excluded other suppliers. This, the bidder claimed, violates the Dutch Public Procurement Act (Article 2.75), which stipulates that technical specifications must be proportionate to the subject of the contract.
The preliminary relief judge found the municipality’s technical justification insufficient. The issues raised by the municipality—suggesting that multiple modules per fixture were necessary—could be addressed in other ways. A maximum of three modules per fixture was not essential. Therefore, the municipality should have opted for a functional specification.
The municipality is not allowed to uphold the requirement, must cancel the ongoing procurement procedure, and - if it still wishes to award the contract—must publish a new tender with a functional description.
Do you have questions about this topic? Please contact Mr. Menno de Wijs, Attorney at law in Public Procurement Law.
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