Blog | Procurement: What - How? (issue week 18)

There are two types of exclusion grounds:

• Mandatory exclusion grounds (Article 2.86 Dutch Public Procurement Act)
• Discretionary exclusion grounds (Article 2.87 Dutch Public Procurement Act)

According to established case law, this is a closed system. This means that contracting authorities may not introduce or apply additional exclusion grounds at their own discretion. They must adhere to the grounds set out in the Dutch Public Procurement Act.

Mandatory exclusion grounds
Mandatory exclusion grounds always apply. Tenderers are assessed against these grounds by default, regardless of the type of contract. This applies not only to European public tenders, but also to contracts below the EU thresholds. These grounds are always ‘enabled’ in the European Single Procurement Document (ESPD), including in national and limited tendering procedures.

Discretionary exclusion grounds
Discretionary exclusion grounds do not apply automatically. For each contract, the contracting authority must explicitly state whether it intends to apply these grounds. If so, it must also specify which discretionary exclusion grounds are applicable. If a certain ground is not mentioned, a tenderer may not be excluded on that basis — even if the ground would otherwise apply to them.

According to the Dutch Proportionality Guide, applying all discretionary exclusion grounds as a standard practice is, in principle, considered disproportionate. The contracting authority must assess for each individual contract whether and which grounds are appropriate. This is also reflected in Article 1.10 of the Dutch Public Procurement Act: the selected exclusion grounds must be proportionate to the nature and scope of the contract.

In practice, however, I often see all discretionary grounds being applied. And in a way, that makes sense. Each ground tests a different aspect of a tenderer’s reliability. It can be difficult to justify why one ground would be proportionate for a particular contract, and another would not. So, in my view, this is an understandable practice.