Procurement: What – How? | Standstill period in tenders applies only to bidders
Who must submit a European Single Procurement Document (ESPD)? At a minimum, the tenderer themselves. This seems obvious: the contracting authority needs to verify whether the tenderer meets the exclusion grounds and suitability criteria. Moreover, the ESPD contains essential information about the party that will become the contractor if the contract is awarded.
The standstill period during which a contract may not yet be concluded applies only to parties who have submitted a bid. If an entrepreneur who did not submit a tender initiates summary proceedings, the contracting authority is not obliged to suspend the procedure.
In a recent ruling by the preliminary relief judge in Gelderland, an entrepreneur objected to the pricing structure in a Dynamic Purchasing System (DPS) procedure. She ultimately submitted those objections through summary proceedings. However, she initiated the case only after the deadline for submission had passed, but before the provisional award was made.
The contracting authority did not suspend the procedure and proceeded to provisionally award the contract while the legal proceedings were still ongoing. Even before the court ruled on the matter, the contracts had already been signed and finalized.
This was not deemed unlawful. The court held that Article 2.131 of the Dutch Public Procurement Act (Aw), which forms the basis for the standstill period, does not apply to a DPS procedure. Therefore, no standstill effect could be derived from that article in this context.
Apart from that, the standstill period under Article 2.131 Aw only applies if the legal challenge relates to the award decision. That condition was arguably not met here, as the claim concerned the pricing structure and was brought by a party who did not submit a bid. Moreover, the standstill period only takes effect after the contract has been provisionally awarded, not before. As such, initiating proceedings before that moment does not automatically suspend the tender.
In this particular case, the claims were also dismissed because they were filed after the tender submission deadline. According to the court, this timing was not sufficiently proactive. The lesson? If your claim concerns the core of the tender procedure, it is essential to act quickly and initiate proceedings—ideally before the submission deadline expires.
Want to know more about the suspensive effect of legal proceedings in procurement? Don’t hesitate to get in touch.
Blog Series 'Procurement: What – How?'
This blog is part of the series ‘Procurement: What – How?’, in which Joris Bax, attorney at Brackmann, shares his insights and reflections on current topics in procurement and construction law.
Procurement: What – How? | Submission of the European Single Procurement Document (ESPD)
Who must submit a European Single Procurement Document (ESPD)? At a minimum, the tenderer themselves. This seems obvious: the contracting authority needs to verify whether the tenderer meets the exclusion grounds and suitability criteria. Moreover, the ESPD contains essential information about the party that will become the contractor if the contract is awarded.