Rechtsbescherming van ondernemers in aanbestedingsprocedures

Procurement procedures do not always proceed according to the rules. Entrepreneurs who miss a contract because of a fault of the contracting entity can go to court. In this field there have been two directives adopted at the level of the European Union that sets preconditions to the national legal systems of Member States. Arthur van Heeswijck has examined the conformity of the Dutch system of legal protection of entrepreneurs in procurement procedures with European law and the consistency of those rules.
The Dutch system of legal protection is broadly in line with European law, but the Public Procurement Act 2012 contains a number of gaps. For example, contracting authorities are under the EU Procurement Directives obliged to motivate the decision to withdraw a procurement procedure. This obligation has not been implemented in the Public Procurement Act 2012. In some cases, entrepreneurs are entitled to reimbursement of the tender costs, if the contracting authority has made a mistake. The Dutch legislation lacks this provision.
The cohesion of the Dutch system of judicial can be improved too. For example, in European procurement procedures contracting authorities are obliged to keep documents which have been received from tenderers confidential. Without justification, a similar provision lacks for national procurement procedures. A provision for confidentiality should be laid down in the general part of the Public Procurement Act 2012, which is applicable to all documents, regardless of the nature of the procedure.