Updated: 06-04-2020
On 15 March, the Netherlands came to an abrupt halt due to additional measures taken by the government in order to address the COVID-19 coronavirus. The period during which those measures apply has since been extended, as a result of which the economy has been shut down to a large extent until at least 28 April. Inevitably, the measures are also having an effect on any tendering processes already underway, and may thus have a major impact on contracting authorities and private contracting parties.
In order to create a level playing field, the Dutch Public Procurement Act contains numerous deadlines. The most important objective of these is to provide tenderers with enough time to be able to submit serious tenders of a high standard. The deadlines are minimum ones and contracting authorities may apply longer ones. Legal protection in relation to tenders is also subject to firm (minimum) deadlines. In the coming weeks, various deadlines in current tendering procedures will expire.
Deadlines and tendering go together like water and fire. Case law follows a clear line, namely that late is late and there is little room for concepts like rectification or reasonableness and fairness. However, under the present circumstances, there is a pressing need - on the parts of both contracting authorities and tenderers - for appropriate extensions to the time limits in present tendering processes.
Though it is inevitable that deadlines will expire or lapse due to the ongoing measures against COVID-19, this serves no one's interests. It may very well be the case that companies which wish to submit tenders presently have no capacity to do so in a timely manner. In respect of the contracts for which tenders are currently being invited, the consequences of the coronavirus have not yet been taken into account where their implementation is concerned. Contracting authorities require time to be able to modify this.
It also frequently occurs that a ‘losing tenderer’ who does not accept an award decision may desire to bring preliminary relief proceedings. However, this must be done in a timely manner, in order to avoid forfeiting the right to complain about the award decision. The courts have been closed since 17 March, but it is now possible to bring preliminary relief proceedings with oral hearings via telephone. This is of course not an ideal means of conducting legal proceedings. The Dutch Commission of Tender Experts has announced that it will not handle any more complaints until further notice.
In the coming time, individual tenderers may of course request the tendering authorities concerned to extend the various deadlines, but this brings an unnecessary administrative burden to bear on all the parties involved in tendering procedures. This can and must be made easier and, in particular, quicker.
All contracting authorities and private contracting parties in the Netherlands would do well at the present time to take a proactive stance. They have set the deadlines in present tendering processes and may - or, in reality, must - themselves now make use of the possibility of extending the deadlines in tendering procedures by a reasonable period of time. In other words, they need to be both proactive and sensible, and can be, without a request to do so being required. However, if necessary, stock might also be taken of the necessity of extension. Extension of deadlines gives all those concerned time to pick things up again after 28 April, assuming that the measures will not be further prolonged. The duration and manner of extension will vary between tendering processes. Extension may not even always be necessary, and the tendering process may continue unchanged. For tendering processes which have as yet to commence, appropriate deadlines should also be applied.
It is in the interests of the Dutch economy that current tendering procedures be rounded off successfully, while the measures to tackle COVID-19 are in place and thereafter. Brief postponement is far from cancellation. What it is, however, is a simple means of preventing damage.
Feel free to contact Richard-Jan Roks, if you have any question regarding the article.
