Earlier, I wrote a blog about the legislative proposal to amend the Dutch Public Procurement Act. In the meantime, the so-called “Scientific Review” (Wetenschapstoets) of that proposal has been published. This review forms part of the legislative process. The academics’ conclusion is devastating: the proposal does not provide any genuine strengthening of legal protection.
The academics note that a complaints desk and the Commission of Procurement Experts can only provide “advice” and have no binding powers. Only a court can still enforce a remedy. For that reason, the researchers conclude that this part of the legislative proposal does not concern legal protection. At most, the proposal strengthens complaint handling procedures.
The academics are also critical of complaints desks more generally. In their report they state: “The usefulness and necessity of mandatory complaints desks is unclear, while doubts remain about their independence and expertise.”
As a result, the core problem is not solved by the legislative proposal. Economic operators who disagree with a procurement decision remain dependent on summary court proceedings. The proposal does not change this.
An important question is therefore whether the proposal will actually lead to fewer legal proceedings, as the legislator intends. That is far from certain. In practice, I already see that bidders prepare their litigation strategy in parallel during complaint procedures. This will not change under the new proposal. On the contrary: deadlines remain so short that sitting still is not an option. During the complaint process, bidders must already prepare for court proceedings.
The researchers raise several additional points of criticism, two of which are worth highlighting briefly.
First, they criticise the proposed statutory provision that assumes the Commissie van Aanbestedingsexperts will issue an opinion within 14 days. The academics are right to be sceptical. The current waiting time is around one year, while the Commission itself has indicated that a 80-day processing period would be more realistic. Under the proposal, contracting authorities are not required to wait that long. After 14 days, the procurement procedure may resume and continue.
Second, the academics point to something the proposal does not regulate, but which is needed in practice: clarification of the so-called Grossmann defence. In short, this means that a bidder may lose its right to complain if it waits too long. The researchers rightly note that there is no statutory framework and that courts apply this doctrine inconsistently, leading to legal uncertainty. The fact that the proposal does not address this is a missed opportunity.
In short: more rules and greater legal complexity, but the question remains whether legal protection actually improves.
The full Scientific Review can be read here.
Please contact Menno de Wijs, attorney in Public Procurement Law.
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