In July 2019, a research report on the state of legal protection in procurement practice was published by the KWINK Group. The research confirms that tenderers consider legal protection in procurement law too low, while contracting authorities consider legal protection adequate. On this topic, see also my earlier article, “Adequate legal protection in procurement law?”.
In response to the report, measures have been taken by Mona Keijzer, State Secretary for Economic Affairs and Climate Change, to improve legal protection in procurement. In a parliamentary letter dated December 3, 2020, the State Secretary outlines what steps have been taken and what steps will still be taken to improve legal protection. In the letter she also discusses the seventh periodic report of the Committee of Procurement Experts and the restarted follow-up program ‘Better Procurement’.
Content Chamber letter
First, the recommendations from KWINK Group’s report were worked out in concrete terms in several sub-areas. To this end, a sounding board group consisting of contracting authorities, entrepreneurs, academics and lawyers was involved. One of these sub-areas is the complaint handling before the moment of tendering. Many questions were answered within the sounding board group, but some topics turned out to be too complex and need further exploration. For example, the desire of entrepreneurs for accessible dispute resolution in award and selection decisions. That topic is too complex to find a solution for already.
All outcomes of the sounding board group will be incorporated into an integrated plan to improve legal protection in procurement. This plan will be presented to the Chamber in the first quarter of 2021. This is of course eagerly awaited.
Seventh periodic report of the Committee of Procurement Experts
The Committee of Procurement Experts issues opinions and provides entrepreneurs with an accessible opportunity to file complaints. The 7th annual report shows that the number of complaints remained almost the same as in the previous three years. What is striking is that the number of opinions issued by the Commission has halved. The Commission indicates that this is due to understaffing at the secretariat. As a result, it is forced to prioritize cases. Cases in which advice can actually make a difference to the outcome of the proceedings in question are given priority. As a result, the average processing time of these cases fell slightly from 40 to 33 days. Complaints without critical deadlines remain unresolved as a result. The average processing time for these increased to 176 days. The ministry announces that it will take the observations from the annual report into account when working out the legal protection measures.
Follow-up program Better Procurement
Dispute resolution in procurement is important, but disputes could also be prevented in the first place through better cooperation and communication between government and business. This is why the ministry has worked in cooperation with VNO-NCW/MKB-Nederland and the Association of Netherlands Municipalities (VNG) on the follow-up program Better Procurement. This program is aimed at improving procurement practices through dialogue and cooperation between governments and entrepreneurs. This dialogue must be given structural form. Budget is being made available for this.
Conclusion
We can expect a plan this year detailing measures for procurement practice. This plan will be based on the results of the KWINK report, the findings of the sounding board group and the annual report of the Committee of Procurement Experts. The intention is to present the plan soon. Whether that will be successful remains to be seen. We will keep an eye on it for you. In the meantime, we are at your service for all your questions on procurement law.
This contribution was written by Hanne Klapwijk and Henk-Jan Ligtenberg. Henk-Jan Ligtenberg is with the Government Practice Group.
