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The advisory tenderer: still a difficult situation

The advisory tenderer: still a difficult situation

The problems surrounding a tenderer that also advises the contracting party continue to be topical. The judge in interim relief proceedings in The Hague ruled in a recently published judgement that the tenderer had benefited because it had advised the contracting party in the preliminary phase. For this reason, one of the five lots had to be tendered out anew (Interim Relief Proceedings, District Court of The Hague, 8 September 2011, LJN: BT6712; rectification judgement LJN: BU1383).

The case
The Dutch Tax and Customs Administration held a European public tendering procedure for a cleaning contract (four lots) and for a quality control system for the cleaning (lot 5). This court case related to lot five. Award took place on the basis of the criterion of ‘the economically most advantageous tender’.

Masterkey advised the Tax and Customs Administration in setting up the tendering procedure, by, among other things, preparing so-called cleanliness statements and a guide price. In the context of the Summary (or Summaries) of Additional Information and Changes, NIC (the claimant in this case) asked questions (and raised objections) concerning the basis of the quality measurements and Masterkey’s involvement in the tendering procedure.

In a letter, NIC (once again) asked the Tax and Customs Administration to adjust the specifications of the quality system so that more tenderers could satisfy it. The Tax and Customs Administration did not honour this request.

On the tender date, Masterkey submitted a tender and NIC involved the Tax and Customs Administration in interim relief proceedings.

The decision
The judge in interim relief proceedings stated first and foremost that it was up to the Tax and Customs Administration to choose a particular system. Even if this has the consequence that fewer market parties will be able to submit a tender. It is significant that, according to NIC, only Masterkey was able to develop an application in line with the specifications in the timeframe given.

It is not in dispute that Masterkey only advised on lots 1 up to and including 4. The court ruled however that lot five cannot be seen separately from lots 1 up to and including 4. After all, the cleanliness statements prepared by Masterkey were important for the application that was to be submitted. It was found therefore that Masterkey had a technological advantage.

It had to be assessed then whether Masterkey had a disproportionately advantaged position with respect to the other tenderers. The judge in interim relief proceedings found that the period for developing the application (6 May 2011 up to and including 8 July 2011) was too short since a number of changes had been made to the specifications during this period by the Tax and Customs Administration. It is also significant that the tendering documents were not immediately clear to all tenderers. The judge in interim relief proceedings found that the period given to develop the application was too short. Masterkey had a system ready at hand that answered to the requirements, however, while it had assisted the Tax and Customs Administration as an adviser in the preparation of the tendering procedure. The judge in interim relief proceedings therefore came to the conclusion that as a result of its advisory role, Masterkey had been advantaged to the extent that the competition and equality between the tenderers had been detrimentally affected (to too great an extent).

The Tax and Customs Administration was therefore ordered to suspend the tendering of lot five and, to the extent it wished to do so, conduct the tendering procedure anew.

Joris Bax

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