1. Introduction: What is procurement law and why is it important?
Procurement law is the legal framework that public authorities must follow when purchasing goods, services and works. In this guide, you will learn what procurement law entails, which rules apply and how to apply them correctly.
Procurement law is constantly changing due to current developments in legislation and case law.
This article covers the core concepts of procurement, the legal framework, practical procedures, threshold amounts and concrete examples. The guide is relevant for lawyers, professionals with higher professional education, entrepreneurs, consultants and participants from the business community. For these target groups, there are various training programmes, courses and classes on procurement law available, aimed at professionals and lawyers who want to deepen their knowledge. The Dutch Association for Procurement Law is an important source of expertise in this field.
Dutch procurement law ensures that public funds are spent transparently and efficiently, while giving all market parties equal opportunities. The procurement obligation applies to contracting authorities and determines when and for whom a procurement procedure is mandatory, with a few exceptions and specific forms of cooperation. It is crucial for both contracting authorities and tenderers to understand and correctly apply these rules. Procurement law is a complex area of law with many rules and strict deadlines.
2. Understanding procurement law: Key concepts and definitions
2.1 Key definitions
Procurement law regulates how public institutions award contracts to external parties. A tender is the process whereby public authorities put a contract out to public tender and tenderers can bid for this contract.
Essential concepts in practice:
- Contracting authority: Government organisations such as municipalities, provinces, water boards and universities
- Tenderers: Companies that submit a bid for a public contract
- Public contracts: Contracts for supplies, services or works
- Award criteria: Standards against which tenders are assessed
- Proportionality: Requirements must be appropriate to the nature and scope of the contract
Pro Tip: The difference between tendering and ordinary procurement lies in the public procedures and transparency requirements. Tendering is subject to strict rules for communication, selection and award decisions.
2.2 Legal framework and regulations
The 2012 Public Procurement Act forms the basis of national procurement law. This Act implements European procurement directives into Dutch legislation and has been in force since 1 July 2016. The Act regulates the rules for public procurement and provides a legal framework for transparency and equal treatment. In practice, the 2012 Public Procurement Act is applied to a wide range of procurement procedures, with regulations being implemented in concrete terms.
Supporting regulations include:
- Procurement decision: Elaboration of specific procedures
- Proportionality Guide: Practical guidelines for proportionate requirements
- ARW 2016: Tendering Regulations for Construction Projects
The principles of the Act, such as transparency, proportionality and equal treatment, are fundamental to ensuring fair and open procurement procedures.
The relationship between EU law and national procurement law ensures harmonisation within Europe. Dutch rules may be stricter than European minimum standards, but not less strict. This means that transparency and equal treatment principles also apply below European thresholds. The legal aspects of the legal framework and the role of regulations are essential for the correct implementation of tenders.
3. Why procurement law is crucial for the public sector
Procurement rules guarantee transparency and equal treatment of market parties. All entrepreneurs are given a fair chance to win contracts, regardless of size or nationality.
Guidance and advice from specialists are essential in complex tenders, such as in construction, area development and catering. These sectors require expert support in tendering, conducting procedures and resolving issues relating to competition and state aid.
The Dutch government spends approximately €60 billion annually through tenders. This substantial amount justifies strict rules for the optimal use of public funds and value for money, and contributes to the realisation of social objectives through tenders.
Procurement prevents corruption and conflicts of interest by:
- Public procedures and transparent communication
- Pre-defined selection criteria and award criteria
- Justification of all decisions
- Legal protection options for tenderers
In addition, tenders stimulate innovation and socially responsible procurement (SRP). Governments can use award criteria to steer towards sustainability, social goals and technological development. SRP means that the government not only considers the price of a service or product, but also its environmental and social impact.
4. Threshold amounts and overview of procedure options
| Category | Threshold amount 2024-2025 | Procedure options |
|---|---|---|
| Works | € 5,548,000 | Open, closed, competitive dialogue |
| Supplies/Services | € 221,000 | Open, restricted, negotiated procedure |
| Special sectors | € 443,000 | More flexible procedures possible |
Please note: Choosing the right tender procedure is essential for different threshold amounts, as this determines which rules and steps must be followed.
National procedures apply below European thresholds, with simplified rules but retaining core principles. European procedures above thresholds require EU-wide publication and longer deadlines.
Procedure options per threshold amount:
- Open procedure: All contractors can tender; participation in a tender is free of charge and companies can easily register.
- Closed procedure: First preselection, then invitation to tender
- Competitive dialogue: For complex contracts with prior consultation
- Negotiation procedure: Permitted in specific circumstances
- Open procedure: All entrepreneurs can tender
- Restricted procedure: First preselection, then invitation to tender
- Competitive dialogue: For complex contracts with prior consultation
- Negotiation procedure: Permitted in specific circumstances
5. Step-by-step guide to successful tendering
Step 1: Preparation and market analysis
Start each tender with a thorough needs analysis and specification of the contract. Determine exactly which products, services or works you need and what results you want to achieve.
Essential preparatory activities:
- Market research into available suppliers and innovations
- Obtaining preliminary information through market consultations
- Budget determination and internal approval procedures
- Establishing selection criteria and grounds for exclusion
- Expert guidance in drawing up tender documents and preparing the procedure
Checklist of required documents:
- Programme of requirements with technical specifications
- Draft contract with legal terms and conditions
- EMVI system for assessing tenders
- Planning with realistic deadlines
Step 2: Choice of procedure and drafting of documents
Choose the tendering procedure based on the value of the contract, its complexity and the market situation. For standard contracts, an open procedure is usually sufficient, while complex projects require competitive dialogue.
When drawing up tender documents, please note:
- Clear specifications: Avoid ambiguities that lead to discussions
- Proportional requirements: Use the Proportionality Guide as a guideline
- EMVI criteria: Balance between price and quality tailored to the contract
- Communication rules: Clear agreements about contact during the procedure
Recommended tools: TenderNed for publication, PIANOo sample documents and specialist procurement law solicitors for legal review. In addition, specialist advisers can offer support in drawing up and checking tender documents, particularly in the areas of procurement law and practical implementation. Companies submit their tenders, which are stored securely in the TenderNed ‘vault’. Companies must register on TenderNed and use eHerkenning to participate in European and national tenders above a certain threshold amount.
Step 3: Implementation and award
Publish the tender through the appropriate channels and communicate professionally with all participants. Treat questions from tenderers equally and share answers with all parties.
Assessment of tenders:
- First check for completeness and grounds for exclusion
- Carry out selection according to pre-determined criteria
- Assess award criteria objectively and traceably
- Document all decisions in detail for legal protection
After the award decision, there is a 15-day standstill period during which other tenderers can lodge an objection. Use this period to debrief unsuccessful parties and prepare for the contract signing. Attention should also be paid to legal protection in tenders, such as the Alcatel period, which allows tenderers to lodge an objection.
6. Common mistakes in tenders
Mistake 1: Unclear specifications lead to unusable tenders and disputes over interpretation. Tenderers must understand exactly what is expected of them.
Mistake 2: Disproportionate requirements due to a lack of proportionality unnecessarily exclude market parties. Only ask for qualifications and references that are relevant to the specific contract.
Mistake 3: Insufficient justification of the award decision leads to successful legal proceedings. Every choice must be objectively substantiated and traceable. Procedures must be followed correctly, in accordance with the principles of procurement law.
Mistake 4: Failure to comply with the 15-daystandstill period after the award announcement. Signing the contract before the end of this period invalidates the award.
Pro Tip: Always use the Proportionality Guide and have documents reviewed by legal experts. Pay extra attention to legal aspects to avoid mistakes. Investing in good preparation prevents costly procedures and delays.
7. Competition law and its relationship with procurement law
Competition law is inextricably linked to procurement law and plays a crucial role in ensuring fair competition during tenders. Contracting authorities must not only follow the procurement rules, but also take into account the rules of competition law to prevent certain entrepreneurs from being favoured or disadvantaged. This means that both when drawing up procurement documents and when assessing tenders, special attention must be paid to equal opportunities and transparency.
The relationship between competition law and procurement law is complex. Whereas procurement law focuses on the transparent and objective awarding of public contracts, competition law aims to prevent cartels, abuse of dominant positions and other anti-competitive practices. In practice, contracting authorities may encounter difficult issues, for example when tenderers make agreements among themselves or when selection criteria unintentionally restrict competition. This can lead to disputes and legal proceedings, in which both national and European regulations play a role.
Procurement law solicitors are indispensable in advising both contracting authorities and entrepreneurs on the application of competition law in procurement procedures. They provide support in drawing up tender documents, assessing tenders and ensuring compliance with all relevant rules. In complex situations, such as suspicions of prohibited cooperation between tenderers or complaints about unequal treatment, solicitors can act as advisers or representatives in court proceedings.
It is essential for both contracting authorities and entrepreneurs to seek legal advice in good time. This not only prevents violations of competition law, but also contributes to a fair and transparent tendering procedure. By working with solicitors specialising in procurement law, parties can limit risks and ensure the correct application of national and European regulations in practice.
7. Practical example: Municipality of Amsterdam ICT tender
Case study: The Municipality of Amsterdam increased savings by 25% through strategic ICT tendering for their infrastructure renewal.
Initial situation: The municipality had fragmented ICT contracts with different suppliers, which led to high costs and unclear responsibilities.
Steps taken:
- Extensive market research into innovative ICT solutions
- Bundling of separate contracts into an integrated contract
- EMVI criteria focused on cost savings, service level and innovation
- Intensive dialogue with market parties during the preparatory phase
Final results:
- €2.1 million annual savings on ICT costs
- 40% improvement in system availability
- Implementation of new technologies for digitisation
| Aspect | For | After |
|---|---|---|
| Annual costs | € 8.4 million | € 6.3 million |
| System uptime | 94 | 99.2 |
| Suppliers | 12 | 3 |
8. Frequently asked questions about procurement law
Q1: When is a government body required to tender?
A1: The tendering obligation applies to contracting authorities for contracts above the statutory threshold amounts; in that case, the entire Public Procurement Act applies. Even below these amounts, the principles of transparency and equal treatment under the EU Treaty apply. Entrepreneurs can participate in tenders in an objective and transparent manner by registering as a tenderer in accordance with the established procedure.
Q2: Can a tender be cancelled without consequences?
A2: Yes, but only for valid reasons such as fundamentally changed circumstances or unusable tenders. However, there are exceptions to the tendering obligation, for example in the case of certain public-public partnerships or other specific situations. Compensation may be payable to tenderers.
Q3: What are the consequences of procedural errors?
A3: Null and void award, obligation to pay compensation and possible criminal liability in cases of gross negligence. The court may have the contract dissolved.
Q4: Are contracting authorities allowed to negotiate tenders?
A4: Only in specific procedures such as negotiated procedures or competitive dialogue. In open procedures, negotiation on price or substantial aspects is prohibited. The manner in which entrepreneurs can participate varies per procedure and is laid down in the tender documents.
9. Conclusion: Key points to consider
The five crucial elements for successful tendering are proportionality in requirements, transparency in communication, correct procedures in accordance with the law, comprehensive justification of decisions, strict compliance with deadlines and respect for the principles of procurement law.
It is essential to follow the correct procedure at every step and to pay attention to all legal aspects involved in the tendering process.