Tendering rules

Do you want to fulfil a contract for a Dutch government organisation? Then you must participate in a tendering procedure. Government organisations must announce a tendering procedure and companies that want to participate must submit a bid. Governments in the EU must keep to European tendering rules.

Contracts that require a tendering procedure

A Dutch government organisation has to follow a tendering procedure if it wants to procure supplies, services, and works. For example:

• office equipment and supplies such as for interior decorating, laptops, and smartphones
• cleaning and security services
• building roads or offices

Organisations that need to follow a tendering procedure

Governments in the European Union must follow a tendering procedure in accordance with the European public procurement directive. In the Netherlands, these rules are included in the Public Procurement Act 2012 (Aanbestedingswet 2012). The act applies to all public contracts. The following government organisations must purchase through a tendering procedure:

• national government (ministries), municipalities, provinces, water authorities
• public institutions, such as universities and schools
• companies in specific sectors such as water and energy companies, and public transport companies such as NS and Schiphol Airport

Partnerships which include a public authority or a public law body must also tender.

Basic rules for tendering

Government organisations that are required to follow a tendering procedure must keep to tendering rules. The basic principles are:

• government organisations cannot treat entrepreneurs differently based on their business location (non-discrimination principle)
• government organisations must treat companies participating in a tender objectively and equally, and offer all participants the same information about the contract and the procedure (equal treatment principle)
• the tender procedure and the requirements must be clear to everyone before the start of the procedure (transparency principle)
• the requirements in a tender must be proportionate to the type and size of the contract (proportionality principle)

Participating in a tender

You can participate in different types of tenders:

• a national public or private procurement of contracts below a certain threshold
• a European tender for contracts above a certain amount (threshold). For example a contract for a government in another EU country, or a contract in the Netherlands open to businesses from other EU countries.

For more information on the different type of tenders see also the Checklist for participating in national and European tenders.

Complaint about a tender

Do you think a government organisation does not apply the tendering rules correctly? Or do you feel you are treated unfairly? During the tendering procedure you can ask a question or submit a proposal. The contracting authority must respond to this in the summary of additional information (Nota van Inlichtingen). If you are not satisfied with that, you can submit a formal complaint to them.

If you are dissatisfied with the handling of that complaint, you can submit a complaint to the Committee of Tendering Experts (Commissie van Aanbestedingsexperts, CvA, in Dutch). The Committee then gives independent, non-binding advice. Tendering services may also submit a complaint about participating companies.

Obstruction from outside the EU

Do you compete in a tender in a non-EU country and do you have difficulty accessing the procurement market there? For example because there are specific rules which make it more difficult, or prevent you entirely from winning the contract? You can submit a complaint using the International Procurement Instrument (IPI) complaints form to the European Commission (EC).

If you have filed a complaint, the EC may impose an IPI measure on certain third-country companies after investigation. These IPI measures are published in the Official Journal of the European Union. Companies with an IPI measure may experience more difficulty participating in European tendering bids. In the worst case they can be excluded from European tenders.

Report foreign government subsidies

Do you want to participate in a large European tender with a contract value of at least €250 million? You must report any government subsidy you, your main subcontractors, or your main suppliers have received in the past 3 years. You must also report when and how much subsidy you received, in accordance with the Foreign Subsidies Regulation (FSR). The contracting authority must forward your report to the European Commission (EC). The EC can investigate if you have an unfair advantage which could distort the European internal market (market distortion). If this is the case, the EC can forbid the contracting authority from awarding you the contract.